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Susan Estrich
The wrong way to make law
July 22, 2004
Why would the Senate be on the verge of enacting legislation that any half-honest law professor would tell you is flatly unconstitutional and could expose the government to potential liability in the billions of dollars, and whose only hope of survival is the cynical prediction by the lawyers who are trying to justify it that it will have to fail? Why would they do it? Why not? It's an election year, and seniors are for it. They want cheap Canadian prescription drugs, and saying that they're entitled to them is easier than explaining why the Founding Fathers, in the words of the Supreme Court, made it unconstitutional to "force some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole."
...We all know people who go online to get their medicines from Canada; what this bill aims to do is require the drug companies to assure that there will be an ample, safe supply of drugs for American consumers at the Canadian price. According to the congressional findings supporting the bill, the lower prices of foreign markets could save Americans at least $38 billion per year.
Or it could cost taxpayers as much as that, if the bill is unconstitutional. I'm one of those people who believe in very broad federal power. I started teaching at Harvard when Bruce was just graduating, and my first course was about federal power.
At the same time he asked me for my opinion, he also retained my ideological opposite, Richard Epstein of the University of Chicago Law School, to look at the same problem. Generally, we agree on nothing. I figured he was looking for a debate.
He didn't get one.
Congress has broad power to engage in economic regulation. But you can't do it by taking away personal property without regard to investments, expectations or patent protection. The takings clause provides that "nor shall private property be taken for public use without just compensation."
How could this legislation NOT amount to a violation of the takings clause? Whether you considered it a per se violation, or applied a rule of reason, or looked at it from the perspective of due process or straight takings clause, or from the perspective of patent law, I kept getting the same answer. Need I add, so did Richard Epstein.
And what about the Congressional Research Service when it looked at this problem? Could it have missed the obvious? If the bill did what it was supposed to, Congress' lawyers concluded, it would be per se unconstitutional. But surely it wouldn't. Surely the drug companies would refuse to sell at too low a price.
