The Government Strikes Back: HHS' Drops Its First Briefs in the Litigation Over the IRA

The story of the lawsuits over the IRA’s price control provisions has largely been one-sided: we’ve heard from the companies and organizations suing the government to stop the program, but other than some anodyne quotes from the Biden administration, there hasn’t been a good sense of how HHS will respond to the suits.

But at midnight on Friday, that changed: HHS filed two briefs in the U.S. Chamber of Commerce lawsuit.

One was a formal opposition to the Chamber’s motion for a preliminary injunction to shut the whole price-control regime down until the legal issues are resolved. The other was the government’s motion to dismiss the suit altogether. (Bloomberg Law covered behind a paywall. I haven’t seen any other coverage.)

I wrote over the weekend about one fascinating argument that the government made: maybe price controls won’t be so bad. Maybe they’ll even lead to higher revenue. It’s a strange position for HHS to be taking, but all’s fair in love and litigation, I guess.

On the core legal issues, I saw two major takeaways.

On the specifics of the Chamber case, HHS leaned heavily into issues around standing. The government doesn’t think that the organization has the legal right to sue them.

The other takeaway is that the government is going to make a big deal about the price-control regime being “voluntary” because companies can refuse to take part by exiting government health programs. This is going to come across as absurd to industry, which knows that leaving Medicare is not financially viable or responsible from a patient-centricity standpoint.

So it sounds like the next great semantic battle will be over the word “voluntary.”

The other element here that caught my eye was a lack of much analysis of some of the core constitutional elements in the HHS briefs. The First Amendment claim, for example, pushed by the Chamber and all four drugmakers to file suit, wasn’t mentioned a single time in either of the HHS filings.

(As a reminder: I’m not a lawyer, and my decision not to enroll in law school a quarter-century ago looks foolish on mornings like this. Not legal advice. Caveat emptor. Etc.)

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