The Maine Rx Prescription Drug Plan and the Dormant Commerce Clause Doctrine: The Case of the Missing Link[Age]

Posted: 30 Jan 2003

See all articles by Brannon P. Denning

Brannon P. Denning

Samford University - Cumberland School of Law

Abstract

In the 2002 Term, the U.S. Supreme Court will hear the case of Pharmaceutical Research and Manufacturers Association v. Concannon, in which PhRMA will argue that the State of Maine's program to supply low-cost prescription drugs to its citizens violates the dormant Commerce Clause doctrine.

This essay argues that the Maine Rx Program violates the dormant Commerce Clause doctrine because it links a facially nondiscriminatory tax with a subsidy in a way that, in combination, burdens out-of-state drug sellers. The Supreme Court has found similar programs to be invalid in past cases, most recently in the 1994 case West Lynn Creamery v. Healy. My analysis contributes to the debate over the program's constitutionality because the "suspect linkage" argument was not raised by PhRMA, was not addressed in Concannon, and has not been noticed in the extant commentary. Viewed from this perspective, it becomes clear that the Maine Rx Program is virtually indistinguishable from similar schemes that the Court has invalidated and that the Court should, thus, reverse the First Circuit's decision upholding the program, laudable though its goals might be.

Part I describes the origins and operation of the Maine Rx Program. PhRMA's challenge and the First Circuit's decision is described in Part II. In Part III, I summarize the Court's linkage decisions, concentrating on West Lynn Creamery v. Healy. Part III also examines a recent article by Dan Coenen and Walter Hellerstein that offers a deeper explanation of the Court's decisions in this area. Part IV then analyzes the Maine Rx Program in light of the cases and Coenen and Hellerstein's criteria for determining linkage, while Part V considers defenses that Maine may offer.

JEL Classification: I18, I19, K19, K23, K34

Suggested Citation

Denning, Brannon P., The Maine Rx Prescription Drug Plan and the Dormant Commerce Clause Doctrine: The Case of the Missing Link[Age]. American Journal of Law and Medicine, 2003. Available at SSRN: https://ssrn.com/abstract=355303

Brannon P. Denning (Contact Author)

Samford University - Cumberland School of Law ( email )

800 Lakeshore Dr.
Birmingham, AL 35229
United States
205-726-2413 (Phone)
205-726-4060 (Fax)

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