At the time of this writing, Joe Biden has been declared the winner and is poised to become the 46th President of the United States. Although President Trump has pledged to pursue legal challenges over alleged voter fraud, there are not believed to be enough votes in dispute that winning them would reverse the declared outcome. On Capitol Hill, it appears at this time that Republicans will maintain control of the Senate needing to win only one of the two runoff races slated for January 5 in Georgia. Meanwhile, the Democrats' majority in the House of Representatives has narrowed significantly and could shrink to less than 10 seats when tabulation of all the votes is complete. What we are left with is a different form of divided government in which incremental change is possible if a compromise is the name of the game.
Highlights/Key Takeaways
- Look for a deal on government funding to be passed before the end of the year and a coronavirus relief package to be passed sometime in early 2021.
- With divided government likely to continue in Washington for at least the next two years, don't look for President-Elect Biden to be able to advance the more controversial items on his health care agenda.
- The Biden Administration will focus first on rolling back many of the more controversial health care regulations implemented by President Trump.
- While some of President-Elect Biden's first administrative changes can be taken by executive order, others must go through the full regulation writing process and that could take a year or more.
- President-Elect Biden and Majority Leader McConnell can be expected to call upon their history of working together in order to advance smaller health care-related bills that have bipartisan support. This will be important should the Affordable Care Act (“ACA”) be struck down in the litigation currently before the Supreme Court.
First Things First: The Lame Duck Session
Even before President-Elect Biden is sworn in on January 20, lawmakers on Capitol Hill must pass legislation by December 11 in order to avoid a government shutdown. Sen. McConnell has indicated that he prefers to pass an omnibus bill that increases or decreases spending rather than a short-term continuing resolution where spending levels remain the same. Given the low chance that Democrats will take control of the Senate next year, the likelihood of Speaker Pelosi agreeing to terms on an omnibus package are much greater than they were prior to the election. An omnibus bill would also provide an opportunity for Congress to pass health care legislation before the end of the year that addresses surprise medical billing or price transparency. However, given the contentious nature of those proposals, their passage is far from certain.
Sen. McConnell also indicated that Congress should pass another coronavirus relief bill during the lame-duck session. However, that bill is expected to be narrowly targeted and well below what House Democrats had been negotiating with the White House prior to the election. The cost of that package was estimated to be in the range of $1.8 trillion, which is significantly more than what rank-and-file Senate Republicans would be willing to support. Consequently, the next coronavirus relief bill is not expected until January. That legislation should include more money for hospitals and health care providers, but how much and in what form remains unknown at this time.
As that process plays itself out, the Biden Transition Team will spend much of November and December vetting candidates for key Cabinet and sub-Cabinet positions, including Secretary of Health and Human Services, CMS Administrator and FDA Commissioner. While President-Elect Biden will be under enormous pressure from progressives to appoint their preferred candidates to high-ranking positions, controversial choices could face an uncertain outcome in the Senate where the confirmation process will be controlled by Republicans.
Dance Partners
Over the course of his 47 years in Washington, Biden was well known as a dealmaker who frequently worked across the aisle with his Republican colleagues to pass bipartisan legislation. An example of this can be found during the Obama Administration when negotiations over legislation to avoid defaulting on the country's debt had broken down between then-Majority Leader Harry Reid and then-Minority Leader Mitch McConnell. In order to restart the process, Sen. McConnell reached out to then-Vice President Biden to cut a deal directly with the White House saying, “I needed a dance partner.” The two eventually came to an agreement that resulted in a bill to avoid a government shutdown, which passed with bipartisan support.
President-Elect Biden and Sen. McConnell are institutionalists when it comes to the legislative process. Thus, there could be a chance of Biden getting some of his more moderate legislative priorities passed by Congress. Should significant portions of the ACA be struck down by the Supreme Court early next year in California v. Texas, Republican lawmakers on Capitol Hill would be forced to work with a Biden Administration and congressional Democrats to pass legislation that would prevent millions of people from losing their health coverage. While that litigation is well down the road with oral arguments set for Tuesday, November 10, the Department of Justice under a Biden Administration could reverse its position in order to send a symbolic signal to the Court that it opposes the lawsuit.
More controversial ideas that are supported by the progressive wing of the Democratic party, like Medicare-for-all, adding a public option to the ACA, the Green New Deal and ending the legislative filibuster, stand almost no chance of becoming law with Republicans controlling the Senate. While congressional Republicans are likely to find religion again when it comes to opposing deficit spending – something they abandoned during President Trump's time in office – it's possible that Sen. McConnell could trade spending cuts in return for supporting some of President-Elect Biden's spending priorities in much the same way that House Republicans did during the Obama Administration.
A Divided Government
On Capitol Hill, divided government means any efforts to repeal the ACA will remain all but dead. Divided government also means the next two years will see lawmakers making almost no headway in passing comprehensive health care legislation. If Congress doesn't address surprise billing and price transparency during the lame duck session this year, look for those issues to return next year along with legislation to further expand telehealth and other health care measures that have bipartisan support. As for the more moderate portions of President-Elect Biden's health care agenda that could become law, those include legislation to reduce prescription drug prices and increasing ACA premium subsidies for the middle-class. While the latter would face opposition from most Senate Republicans, this could be one of those areas where Sen. McConnell is willing to trade increased spending in return for spending cuts elsewhere.
Although President-Elect Biden will have a difficult time winning support for much of his agenda in a Republican-controlled Senate, he should be able to advance a number of his health care priorities through the administrative process, much of which will be focused on reversing the Trump Administration's efforts to administratively dismantle the ACA. One of the first steps he is expected to take entails shoring up the solvency of the ACA marketplaces. To do this, he could use the public health emergency as a reason to issue an executive order that steers more money to the exchanges. He could also move money around inside the government to increase the ACA's insurance subsidies in the same fashion that President Trump moved money around to fund border wall construction. Another option is to immediately open a special ACA enrollment period for anyone who is currently uninsured, a move that is quite likely given the ongoing pandemic. President-Elect Biden should be able to issue these and other executive orders relatively quickly. However, other executive branch actions must go through the administrative process and will take more time.
For example, President-Elect Biden has said he plans to get rid of the short-term health insurance plans the Trump Administration has allowed to be sold on the ACA exchanges. He has also signaled that he intends to rollback the changes made to the ACA's contraception coverage mandate, the funding cuts to Planned Parenthood and other abortion providers and the anti-discrimination rules for transgender patients. He has said he plans to reverse the Medicaid work requirements that have been implemented in several states, and he will deny requests from any others to do the same. Since he has pledged to expand Medicaid, he may look to cut deals with governors in Republican states the same way President Obama did with then-Indiana Governor Mike Pence over expansion of that state's HIP 2.0 program.
Most actions not taken by executive order must go through a formal notice and comment period and the entire administrative rule-making process can take up to a year or more. While Biden is expected to protect the 340B program from further cuts, whether he will reverse the cuts made by the Trump Administration is unknown at this time. Another potential roadblock to quick action is that many of these issues have either been litigated to completion in the courts or are currently working their way through the litigation process. For example, the Supreme Court has upheld the religious or moral objection exemption to the contraception coverage mandate, and the administrative action rolling back anti-discrimination rules for transgender patients is also working its way through the court system. Any effort to reverse these and other Trump Administration regulations, not to mention the implementation of new regulations, would face even more challenges in court.
And, as we all know now, not only is there a 6-3 conservative Supreme Court majority, but almost 220 of those courts are now benched by federal judges appointed by President Trump.
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