Constitutional
Law Class Notes
Pharmaceutical Research
and Mfrs. of America v. Walsh
The
hardest case all semester! This is a
very conceptually difficult case. But
the Supreme Court thought the same thing.
This case failed to produce a majority opinion! (Sort of like Asahi!)
They
split up the opinion! The Court agrees
on the facts in Parts I-III. Stevens
gets four votes for Parts IV and VII. He
gets three votes for Part V.
It
is theorized that these split opinions have happened less often as the same
nine justices have sat on the Court for more time. The Court might vote for a certain judgment,
but they may have trouble joining each others’ drafts. Over time, the opinion writers become more
adept at writing opinions that will draw a majority.
But
when there’s such a split decision as this, we know it was a difficult case. It may be that when we get some turnover on
the Court we’ll get more fragmentation in opinions.
It
is very, very important to pay attention to when you have majority opinions of the Court as opposed to plurality opinions of the Court.
Even though Justice Stevens may win the vote count on the judgment, he
doesn’t speak for the Court except
where it’s noted. You must be aware of
that. You need to make sure that you
have an authoritative statement of the U.S. Supreme Court.
The
Marks doctrine says that when you
have a plurality situation, you have multiple opinions supporting the judgment. The opinion that lower courts and lawyers
should look to is the opinion which articulates the narrowest ground for that judgment.
The
Stevens opinion got the most votes among those supporting the judgment in this
case. That’s why Stevens is allowed to “announce
the opinion of the Court”.
When
you write briefs, the very last line of your brief should be “For the foregoing
reasons, we ask this Court to affirm (or reverse).” You always must give the bottom line.
So
what are the facts? What’s going on
here?
What
is the Medicaid statute? It’s a federal statute
that uses federal money to provide additional funds for needy people who would
otherwise not be able to get medical care.
The
states can set up a prescription drug benefit as part of the program.
What’s
the Maine Rx statute?
The
district court grants the injunction, while the Court of Appeals reverses, and
the Supreme Court justices disagree. There
is a lack of factual clarity because the case is at the level of summary
judgment in procedure.
It
seems as though even though all
How
does the state’s provision of a benefit under Maine Rx affect the Medicaid
program? If the Maine Rx program would
be entirely free-standing, with no potential effect on Medicaid, then there
wouldn’t be a challenge. But the drug
companies charge that Maine Rx interferes with Medicaid. What do they mean by interference?
It’s
dense material. Let’s “unpack”.
Suppose
From
the drug companies’ point of view, they have to take a hit in terms of the
prices that they charge.
What
about this prior authorization bit?
Would that exist in the Medicaid program alone, putting aside the Maine
Rx program? Prior authorization was part
of Medicaid itself. What does that
mean? For certain types of drugs, authorization
would have to be obtained from a state agency.
They would check if there was a cheaper equivalent drug out there so
that the funding agency won’t take as big of a hit.
HMOs
do this often. A doctor says: “There’s
this great new drug and I want to prescribe it for you.” The HMO says, for example: “Try Advil first,
maybe you don’t need the fancy drugs.”
The insurance mechanism intervenes in the doctor-patient
relationship. The doctor must tell the
insurance company why the particular fancy, expensive drug is necessary.
Medicaid
has prior authorization built-in. Medicaid insisted that the states adopted a
prior authorization mechanism.
If
prior authorization was a feature of the Medicaid program itself, why is the
prior authorization so important when we’re thinking about the relationship of
the new program, Maine Rx, to Medicaid?
What is the importance of the “interference” theory?
The
key concept here is that Maine Rx imposed
prior authorization on any drug company that refused to participate in the
rebate plan for the folks who weren’t in
Medicaid, but in another category.
Note
what we’re not talking about: prior
authorization for the people isn’t the only thing at stake. Prior authorization is going to become
required for people who are already
eligible for Medicaid. The “cross-cutting”
nature of the punishment becomes the problem.
The
penalty for not participating in Maine Rx
would have been a Medicaid penalty. There is a “stick” related to the federal
program.
How
did the drug companies make a legal claim out of the interference point? What’s the Maine Rx program doing to the federal
program?
The
drug companies are claiming that there is interference by the Maine Rx program
with Medicaid. They claim there is a
conflict between the state law and the federal law.
Where
does the ability of federal law to trump state law come from? It comes from the Supremacy Clause. An act of Congress is supreme if it’s constitutional. Inconsistent state law must give way by
virtue of the Supremacy Clause. What
makes this a constitutional law case is the Supremacy Clause.
Medicaid
is a federal statute. There is no constitutional
challenge to Medicaid in this case. The
drug companies aren’t saying that federal Medicaid law is unconstitutional. In fact, they are relying on federal Medicaid law.
They don’t say that Medicaid is beyond the scope of federal power.
So
if we assume Congress had the power to enact Medicaid, then if Maine Rx is
inconsistent with that federal law, then the state law must go. The Supremacy
Clause says that when there is a conflict, federal law wins.
The
key point is that the constitutional
proposition about the Supremacy Clause is straightforward. All the work of lawyering in preemption cases
is figuring out: “Do we have a conflict
between federal law and state law?”
If there is a conflict, preemption will occur. So if you want to keep a state law, you must
argue that it doesn’t really conflict with any federal law.
How
does the Supreme Court try to find out if we have inconsistency?
Think
about the relationship between the Supremacy Clause to the dormant (or
negative) Commerce Clause. The drug
companies make two claims: they make (1) a preemption claim, and also (2) a
negative Commerce Clause claim. They say
even if there is no inconsistency, the state law must be struck down because it
somehow interferes with interstate commerce.