Press Release

Welch, Klobuchar, Colleagues File Amicus Brief Urging Court to Uphold Medicare’s Ability to Negotiate Lower Prescription Drug Prices for Consumers

Sep 19, 2023

WASHINGTON – Senators Peter Welch (D-VT) and Amy Klobuchar (D-MN) as well as Senators John Hickenlooper (D-CO), Elizabeth Warren (D-MA), Chris Van Hollen (D-MD), Richard Blumenthal (D-CT), Tammy Baldwin (D-WI), Jacky Rosen (D-NV), Sherrod Brown (D-OH), Dick Durbin (D-IL), John Fetterman (D-PA), Debbie Stabenow (D-MI), Catherine Cortez Masto (D-NV), and Jeanne Shaheen (D-NH) filed an amicus brief in Merck & Co. v. Becerra in the District Court for the District of Columbia urging the federal court to uphold the constitutionality of Congress allowing Medicare to negotiate lower drug prices for consumers. 

“Merck’s lawsuit is a shameless attempt to use the judiciary to overturn the clearly expressed intent of the legislature and the American people. By allowing Medicare to negotiate prices, the Inflation Reduction Act puts the physical and financial health of patients over corporate profits,” said Senator Welch. “Medicare’s new capacity to negotiate prescription drug prices is bringing Medicare in line with other government agencies like the VA, and it’s just the beginning of our fight. I’m proud to partner with my friend and colleague Senator Klobuchar today, and I will continue to stand up for affordable health care for all Americans.”

“For too long, Americans have paid the highest prices in the world for prescription drugs. Thanks to legislation we passed to end Big Pharma’s sweetheart deal, Medicare is starting to negotiate lower drug prices for consumers,” said Senator Klobuchar. “It’s no surprise Big Pharma is now trying to stop this in the courts and keep prescription drug prices sky high. We’re fighting back against these absurd lawsuits and we’re not giving up.”

An excerpt from the brief is below. The amicus brief is available HERE.

Merck now attempts to accomplish through judicial action what it could not through the legislative process. Merck’s position in this litigation boils down to the argument that the United States Constitution somehow prohibits the federal government from negotiating the prices of the products it purchases. Merck seeks to prevent reform of a purchasing process that Congress itself made, but now, according to Merck, cannot unmake, or even amend for the benefit of the American public and the American taxpayer. As a matter of constitutional law, that position is baseless. Congress improves laws all the time, and it has the right and indeed the duty to do so. The Program takes nothing from Merck: not its drugs and not its patents. And the Program likewise does not coerce Merck to do or say anything: like every other market participant, it may sell its products at a price the buyer thinks is fair, or it may not.

Provisions from Welch and Klobuchar’s bill to end the ban on Medicare negotiating lower prescription drug prices for Medicare’s 50 million seniors were incorporated into a larger piece of legislation signed into law last August. 

This past April, Welch, Klobuchar, and 28 of their colleagues introduced the Strengthening Medicare and Reducing Taxpayer (SMART) Prices Act which would enhance the ability of the Department of Health and Human Services (HHS) to negotiate lower drug prices for Medicare Part D beneficiaries.