On November 19, 2025, judges on an Eighth Circuit Court of Appeals Panel briefly questioned the pharmacy benefit managers (PBMs) accused by the Federal Trade Commission (FTC) of artificially inflating insulin prices by rigging the pharmaceutical supply chain in their favor and preventing patients from accessing affordable life-saving drugs. These PBMs are attempting to stop the FTC's internal proceedings against them while the constitutional challenge plays out.
The three largest PBMs in the country, who together make up approximately 80 percent of the marketplace—UnitedHealth Group'sOptumRx Inc., CVS Caremark Rx LLC and Cigna Group'sExpress Scripts Inc.—sued the FTC in November 2024 alleging that the FTC's administrative proceedings violate Article II, Article III and the due process clause of the U.S. Constitution.
Essentially, the PBMs are arguing that they will be irreparably harmed if their claims are adjudicated in the FTC's internal administrative proceedings instead of federal court.
In February 2025, the U.S. District Court for the Eastern District of Missouri denied the PBMs' request for a preliminary injunction, emphasizing that their claims were unlikely to succeed. In March 2025, in a brief, one-page order without any reasoning, the Eighth Circuit affirmed the lower court's decision.
In Wednesday's oral arguments, PBMs continued to seek a reversal of the lower court's denial of the preliminary injunction, arguing that Congress erroneously gave the FTC power that the Constitution reserves for the president and federal courts.
Counsel representing the PBMs argued that they will not receive a fair review unless the case is heard in federal district court because, in the past 25 years, the FTC has an undefeated 30-0 record in administrative proceedings.
Counsel, when asked by the court, was unable to present any cases where a court upheld a preliminary injunction or reversed a lower's courts denial of a preliminary injunction based on a structural constitutional challenge.
Based on the lack of court precedent, the appeals panel was reluctant to weigh in at the preliminary injunction stage and expressed that it needed to proceed with "extreme care" and "hesitancy." Eighth Circuit Judge Bobby E. Shepherd stated, "Personally, it doesn't give me a lot of comfort and reassurance that this is really an area that we need to be getting into on a preliminary basis."
The PBMs' constitutional challenge focuses on restrictions that prohibit the FTC's administrative law judges and commissioners from being removed by the president without cause. Daniel Aguilar, U.S. Department of Justice attorney for the FTC, argued that while the FTC has acknowledged that the removal restrictions are unconstitutional, that alone does not constitute harm. The PBMs still need to demonstrate actual harm or that the agency is acting inconsistently with the wishes of the president. Aguilar further argued that the PBMs cannot demonstrate the necessary harm because the president "wishes the law to be executed this way" and "his subordinates are fulfilling his wishes."
Counsel for the PBMs contends that the PBMs have shown that the in-house proceedings will cause irreparable harm.
We will continue to monitor this case and make the ruling and any other updates the subject of a futureAlerts.
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