October 1, 2020
By Timothy Sandefur
This past summer, Minnesota Governor Tim Walz signed legislation that forces drugmakers to turn over their insulin for free upon demand to people making below 400 percent of the federal poverty line. Although Gov. Walz justified the seizure of these companies’ property on the grounds that pharmaceutical companies are “hated,” the taking of anybody’s property is theft—and the Constitution forbids states from confiscating private property without paying the owner just compensation.
That’s what the Goldwater Institute argues in a friend of the court brief we filed today in a federal court where pharmaceutical companies have sued to challenge the legality of the insulin seizure law. As we point out in the brief, there’s no difference in principle between the state’s confiscation of insulin and the federal government’s confiscation of raisins, which the Supreme Court ruled in 2015 was a taking requiring just compensation. In both instances, the government is seizing private property from one group and giving to another, without paying the owner.
Not only is that unconstitutional, but it’s unwise and immoral. It’s unwise because depriving pharmaceutical companies of the profits they’ve earned will only deter investment and innovation, and it will force people who need other kinds of medicine to pay more for their drugs in order to make up the difference. The Minnesota law is designed only to apply to certain “deep pockets” drug companies—but those companies make a wide variety of medicines for everything from cancer to depression, and forcing them to give away insulin for free means compelling people who need cancer and depression medicines to pay more—even if those people are poorer than the people who get the insulin.
It’s also immoral for the government to take away the property of one group of people to give to another. Every person—including people who choose to do business in the form of a corporation—has the right to decide what to do with his or her private property, and the right to ask for payment in exchange for his or her labor. A law that forces companies to make and hand over medicine without compensation is just as immoral as it would be to force a lawyer or a farmer or a scientist to work for the benefit of another person without pay. It’s popular, of course, to try to conceal this fact by calling the victims of theft “greedy.” But that’s just a rhetorical ploy used to rationalize committing an injustice against them.
That kind of rhetorical trick is at play in another way, too: Although Minnesota officials seek to portray the Insulin Act as a form of compassion, it’s actually a form of pseudo-compassion. Genuine compassion would mean paying out of one’s own pocket to help the needy. But instead of doing that, lawmakers have chosen to force these companies to pay—thereby funding their charitable feelings with other people’s money. Fortunately, the Constitution forbids such things: When the government takes away people’s property for some “public” use, it must pay the owner just compensation.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.