When government enters the pharmaceutical market as a participant, it naturally changes the dynamics. But when Congress does this, is it a taking? 

Medicare Part D is a voluntary prescription drug benefit program for Medicare beneficiaries. When Congress first created Part D in 2003, it barred the Centers for Medicare and Medicaid Services (“CMS”) from using its market share to negotiate lower prices for the drugs it covers. But Congress changed course when it enacted the Inflation Reduction Act of 2022 (the “IRA”). The IRA includes a Drug Price Negotiation Program (the “Program”) that directs CMS to negotiate prices over a subset of covered drugs that lack a generic competitor and represent the highest expenditures to the government.

In Bristol Myers Squibb Co. v. U.S. Dep’t of Health & Human Svcs., No. 24-1820 (Sep. 4, 2025), the U.S. Court of Appeals for the Third Circuit held no, it…