Affordable drugs and human freedom vs. American federalism

By David Flemming

For many years, Vermonters have included themselves among the Americans who have been held hostage by the the artificially high prices for pharmaceutical drugs, brought about by the collusion between our federal government and pharmaceutical companies.

Senate bill S.175 would attempt to alleviate the painful price gouging for Vermonters and is awaiting action in the House after a unanimous vote in the Senate. It directs Vermont’s Agency of Human Services to “design a wholesale prescription drug importation program … us(ing) Canadian prescription drug suppliers.” There have been few Vermont bills in recent memory that have lead to so many fascinating questions about the interplay between federal and state government.

WebMD has a helpful synopsis showing how Americans have already begun importing drugs without respect for the federal statute: “While the practice of reimporting drugs from Canada, Mexico, or other countries is still technically illegal … is increasingly becoming a custom more honored in the breach than in the observance. The U.S. House of Representatives has passed three versions of bills that would allow consumers to import legal drugs for personal use.” While none of these bills have yet to pass through the Senate and the President, it is clear that there is real Congressional and Presidential momentum behind the federal efforts. So far, to no avail: the yearning for a more competitive drug market with more affordable prices has not been realized by Americans at large.

Under federal law, importing drugs from foreign countries is illegal. But due to the sky-high costs of legal prescription drugs in the US, our government Is turning a blind eye to the free-market solution: letting US citizens find lower-cost suppliers abroad and giving them their business. This practice is very much in line with 6 out of 7 of the Ethan Allen Institute’s fundamentals of a free society which are “individual liberty, private property, competitive free enterprise, strong local communities, personal responsibility, and expanded opportunity for human endeavor.”

The EAI fundamental of ‘limited government’ would seem to be in direct conflict with S.175. Under American federalism, the federal government has the ultimate authority over matters such as drug commerce (Section 1, Article 9 of the US Constitution), and the states and people are left with the authority not relinquished to the federal government (10th Amendment).

And here is the rub. Special interests (i.e. prescription drug companies) have abused the complexities of federal government to isolate themselves from competition, but their situation is more precarious at the state level. So it is up to the states, like Vermont, to secure the competitive free enterprise that has been limited by a monolithic, lackadaisical federal government.

If a government is to be respected, it must have respectable laws. But the commerce clause in the U.S. Constitution, that the government shall make commerce “regular,” has become less respectable with age, and an open invitation to cronyism. We might feign surprise that people are breaking the law in order to pay less for drugs that sustain their lives, but 21st century innovations and the hundredfold increase in trade in the past 200 years has made selective enforcement of the commerce clause for favored companies the federal government’s only recourse. In the meantime, the rule of law has become less respectable. Supporting the rule of law as defined in our Constitution is important, but not when that support leads to nepotism and severe curtailing of free enterprise and human freedom.

If the federal government already turns a blind eye to, and perhaps hopes, that Americans will have the survival instinct to buck the law by importing foreign drugs, the damage to the rule of law has already been done. Giving Vermont legislators the means to tear down this corrupt federal sanctuary through S.175 could do much for enabling human freedom, while re-establishing a responsive and respected statewide government in the absence of a federal one.

Assuming of course, that S.175 can appropriate the $1 million needed to fund the program without raising taxes, while giving any Vermont business the chance to import prescription drugs from Canada so as not to create a government sponsored importing monopoly for one business.

David Flemming is a policy analyst for the Ethan Allen Institute. Reprinted with permission from the Ethan Allen Institute Blog.

Image courtesy of Wikimedia Commons
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