Faced with skyrocketing prescription drug prices, almost one-fifth of older adults report that they skipped, delayed, underused, or borrowed prescription medications due to concerns about the cost, according to a 2022 survey. It’s no wonder that over four-fifths of Americans support Medicare’s ability to negotiate prescription drug prices. But on October 30th, drug manufacturers will ask the U.S. Court of Appeals for the Third Circuit to block the prescription drug price negotiation program as part of their lawsuit against Health and Human Services Department Secretary Xavier Becerra. They argue that the Constitution entitles them to name their price and force the government to pay it. Indefinitely.

As a part of the Inflation Reduction Act (IRA), Congress created a drug-price negotiation program for ten of the most common and expensive drugs, ensuring that drug manufacturers can no longer force Medicare to accept their prices. The results have already been impressive: the government recently announced that it reached prices that will save Medicare an estimated $6 billion per year, and those taxpayer savings will only increase as more drugs are added each year. The negotiation program aligns Medicare with other federal programs, allowing the government to negotiate with drug manufacturers, such as the Veterans Affairs National Formulary.

Drug manufacturers brought various constitutional challenges against the Medicare Drug Price Negotiation Program, but perhaps the most unusual were their claims under the Takings Clause. The Takings Clause provides that private property shall not “be taken for public use, without just compensation.” This often comes up in the eminent domain context, when the government takes property such as farmland or homes to clear space for roads and other infrastructure projects. Yet the Takings Clause has recently become the argument of choice for corporations claiming that they are constitutionally entitled to avoid regulation that hurts their bottom line.

The path forward for the courts is clear: they should hold that these Takings Clause claims are at odds with the text and history of the Constitution.

The Framers narrowly limited the Takings Clause to the seizure of physical property. Even as the Supreme Court has expanded the Clause’s scope, it has continued to limit it to situations that function as an involuntary physical taking of property. There’s no taking here under those precedents, not to mention the Constitution’s text and history.

To start, there’s no physical seizure—the drug price negotiation program doesn’t “take” a single pill from drug manufacturers. It only allows the government, like any other customer, to decide what it is willing to spend. Nothing in the Takings Clause guarantees corporations the right to set a level of profit for themselves. And federal law doesn’t require drug manufacturers to agree to the government’s offered price; instead, it mandates a negotiation in which both sides have input into the final price.

The drug manufacturers argue that it’s nonetheless a taking because, they say, they have no choice but to negotiate. But the program gives them off-ramps if they don’t like the negotiated price. They can choose to continue selling at their preferred price if they pay a tax on sales of that drug. They can also stop selling their medications to Medicare altogether. Or they can arrange to transfer their interest in the selected drug to another manufacturer so they can continue to sell the rest of their portfolio to Medicare while opting out of the negotiation program.

Drug manufacturers don’t like any of these choices, but a choice they don’t like is not a constitutional violation. As one Delaware judge observed, “How is any of this involuntary? You’re free to do what you want. You may not make as much money, but you’re free.”

What the drug manufacturers, in this case, lack in constitutional support, they make up for in chutzpah. Contrary to the evidence, they argue that price negotiations will force them to stop researching innovative drugs. Bristol Myers Squibb argued in the district court that negotiating prices will create a “dystopian” scenario where they’re unable to develop “future life-saving treatments in areas such as cancer, Alzheimer’s disease, and immunological and cardiovascular disease.”

Nice cure for cancer we’ve got, here, they say. It would be a shame if anything were to happen to it. Never mind that Bristol Myers Squibb’s CEO promised on an earnings call that the company was “confident in our ability to navigate the impact of IRA.”

Drug manufacturers are free to dislike prescription drug price negotiation programs. If they think it’s a bad idea, they know how to make their voices heard: the pharmaceutical industry spent a record-breaking $372 million on federal lobbying in 2022. However, the Constitution does not entitle drug manufacturers to maintain their bottom line by indefinitely dictating the prices Medicare pays. Courts should reject these attempts to expand the Takings Clause beyond the scope dictated by the Constitution’s text and history.