Divided they stall

President-elect Biden faces huge challenges in pursuing healthcare changes

Joe Biden will be the next president of the United States. But he faces a divided Congress, which makes passing major healthcare legislation an unlikely prospect over the next two years.

At the outset, his administration will no doubt move quickly to undo many of the administrative roadblocks the Trump administration created for expanding coverage under the Affordable Care Act. But the law’s constitutional challenge by red state attorneys general in California v. Texas, which will be heard by the Supreme Court on November 10, could render the law entirely moot.

A Democratic Congress under a Biden presidency could have made the case irrelevant by passing a $1 tax for anyone failing to buy health insurance. Or it could have restored the original individual mandate. But the mixed election results eliminate those options.

How likely is it that the newly installed conservative majority on the high court will overturn the ACA? Some argue the court would never take away 20 million persons’ health insurance or remove very popular protections like ensuring coverage for people with pre-existing conditions.

But judges read election results, too, and they saw that nearly half the country still believes in Trumpism. If we’ve learned anything from the politics of 2020, it is that laws and norms don’t count for much in this hyper-partisan era. Quaint legalisms like stare decisis or severability are weak reeds on which to hang ones hopes for basic human decency.

Continuing uncertainty about the presidential race — the president’s lawyers will no doubt pursue the many cases they’ve filed in state courts — will likely delay any consideration of another pandemic relief bill. Moreover, even if the current Congress addresses it in the lame duck session, why would the current occupant of the White House sign the bill?

Looking ahead to 2021, President-elect Biden has no chance of passing his platform’s proposals for expanding health insurance coverage. Republican in the Senate have evinced zero interest in a public option for the insurance exchanges or lowering the age for Medicare eligibility to 60.

On the other hand, there is some bipartisan support for dealing with high drug prices and surprise medical bills. Polls have repeatedly shown affordability is the main concern of most Americans when it comes to healthcare.

But, in both cases, special interests succeeded in hamstringing Congressional action over the past four years, proving once again they are far more powerful than mere public opinion. The private equity firm-backed specialty physician practices that use surprise billing to pad their bottom lines were able to scuttle legislation before the election. There’s no reason to think their influence with Senate Majority Leader Mitch McConnell or key Democrats in the House, in particular, Rep. Richard Neal of Massachusetts, will be any less next year.

Drug prices is another area where both parties seem to be in agreement. The skyrocketing costs of specialty drugs and new drugs coming on the market threaten to bankrupt the system. Doing something about high drug prices is one of the highest priority items on employers’ agenda. Many seniors now pay more for their Part D drug plan than they do for their supplemental plans that cover the gaps in Medicare coverage.

Yet pharmaceutical firms, who deploy one of the most extensive and well-heeled lobbying machines in Washington, have a proven track record in preventing bold measures to address high drug prices. The continuation of a divided Congress will make their work easier, not harder.