The party split in Congress is so small that passing major health laws will be extremely difficult even with technically majority Democrats. So speculation about President-elect Joe Biden’s health agenda has focused on the things he can accomplish through executive power. While there is a long list of things he could do, the list of things he is being asked to undo is even longer – actions taken by President Donald Trump.
While Trump couldn’t make up his highest profile Health promise since his 2016 campaign – including repealing the Affordable Care Act and lowering prescription drug prices largely – his government has made significant changes to the country’s healthcare system with executive authority. And many of these changes are anathema to Democrats, especially those that aim to weaken the Court of Auditors.
For example, the Trump administration has made it easier for those who buy their own insurance to purchase cheaper plans that don’t cover all ACA benefits and may not cover pre-existing medical conditions. Protection against discrimination against transgender people in the healthcare sector has also been lifted.
Trump’s use of tools such as regulations, guidelines and executive orders to change health programs “was like being attacked by a thousand paper cuts,” said Maura Calsyn, general manager of health at the Center for American Progress, a liberal think tank. Before the November elections, she said, “The government was doing irreparable damage to the country’s health system.”
Rolling back many of these changes will be a large part of Biden’s health agenda, in many cases even before he tries to deliver on his own campaign promises, such as creating a government-sponsored health plan for the ACA.
Chris Jennings, a health advisor to Presidents Barack Obama and Bill Clinton, said he called this Trump health policy “bird droppings. You have to clean up the bird droppings before you have a clean slate. “
Republicans think the same way about the policies of their predecessors when they replace a Democratic government.
While it may seem easy to change executive policy, it is not always the case.
“These are individual decisions that must be made that require process assessment, legal assessment, resource consideration and timeliness,” said Jennings. In other words, some policies will take more time and human resources than others. And health policy will have to compete for the White House’s attention with policies that the new administration seeks to change on everything from the environment to immigration to education.
Even in healthcare, topics as diverse as the activity of the ACA marketplaces, women’s reproductive health, and stem cell research will compete for high priority.
A guide to executive action
Some types of actions are easier to undo than others.
Implementing ordinances issued by the President can, for example, be abolished by a new implementing ordinance. The agency’s “guidance” can be overridden in a similar fashion, even though the Trump administration worked to make it even more exhausting.
For example, since the 1980s, whenever the presidency changes party, one of the new president’s first actions has been to issue an executive order to one of the two impose again or remove the “Mexico City Policy”, which regulates the funding of international family planning organizations that “carry out or promote” abortions. Why are new governments addressing abortion so quickly? Because the anniversary of the Supreme Court’s landmark abortion decision Roe versus Wade is two days after the inauguration day, so the action is always politically timely.
It is more difficult to change formal regulations such as Federal Family Planning Program, Title X. They are subject to a law, the Administrative Procedure Act, which provides for a very specific – and often time-consuming – process. “You have to cross your T and your legal I’s,” said Nicholas Bagley, who teaches administrative law at the University of Michigan Law School.
And if not? Then regulations can be challenged in court – like those of the Trump administration have been dozens of times. That’s something Biden officials will avoid, Calsyn said. “I would expect that in light of the reformed judiciary,” so many Trump-appointed judges will have very deliberate announcement and commentary arrangements, she said.
Which comes first
Undoing the actions of a previous government is an exercise in trying to push many things through a very narrow tube in a short period of time. In addition to going through the management in each department, departmental regulations must go through the Office of Management and Budget “for technical review, cost-benefit analysis and legal authority,” said Bagley. “This can take a while.”
To make matters worse, many health regulations come from not just the Department of Health and Human Services, but jointly from HHS and other departments, including the Department of Labor and Treasury, which likely means more time to negotiate decisions between departments.
Finally, Bagley said, “Things that are really high profile have to get the president’s attention, and he has a limited amount of time, too.” Anything related to a pandemic will likely come first, he said.
Some items are pushed to the beginning of the series for calendar reasons, such as the abortion implementing ordinances. Others need more urgent attention because they are part of active legal proceedings.
“They have all of these court and briefing schedules that set the timing that all of these decisions will be made,” said Katie Keith, health policy researcher and law professor at Georgetown University.
The Trump administration’s efforts to allow states to set work requirements for many low-income adults who have received Medicaid coverage as part of the Affordable Care Act’s expansion of the program are the best-known Trump action incorporated into this latter Category falls. The Supreme Court agreed to hear a case challenge HHS approval of work requirements for Arkansas and New Hampshire over the next several months. Some Democrats are concerned about how the Supreme Court might rule with its new Conservative majority, and the Biden government must act quickly if officials decide to avert this case.
But legal proceedings could also help the Biden government to short-circuit the tedious regulatory process. If an ordinance that the new government is trying to rewrite or repeal has already been blocked by a court, Biden officials simply cannot appeal that ruling. Trump did that in did Termination of health insurance grants for low-income students in 2017.
However, allowing a lower court ruling is not a foolproof strategy. “That increases the possibility of having someone [else] intervene, ”said Keith. For example, Democratic Attorneys General stepped in to defend the ACA on a case now pending in the Supreme Court when the Trump administration ruled against it. “So you have to be pretty strategic not to be attractive,” she said.
Another big decision for the new administration is whether to take the opportunity to tweak or add to Trump policies rather than eliminating them. “Is it undo and period?” asked Keith. “Or undo and add?”
She said there were “a number of ideologically neutral” guidelines Trump put out, including those on price transparency and prescription drugs. If Biden officials don’t want to keep these as they are, they can rewrite them while pushing other policies forward, saving a round of regulatory overhead.
But none of this is easy – or quick.
A big problem is having only enough body to do the job. “There has been so much that the federal workforce has undermined and undermined; There’s a lot to be rebuilt, ”said Calsyn of the Center for American Progress. And Trump officials were so rude with the regulatory process in many cases, she said, “even restoring those processes will be difficult.”
Arriving officers also have other time-sensitive tasks to do. Writing rules for the newly adopted Ban on “surprising” medical bills will almost certainly be a huge political battle between insurers and healthcare providers who will try to renegotiate the legislation as it gets implemented. Rules for insurers selling policies under the ACA must be written almost immediately after Biden takes office.
Anyone waiting for a certain Trump policy to be struck off the books will likely have to be patient. But law professor Bagley said he was optimistic that everything would be done.
“One of the things that we are no longer used to is competent administration,” he said. “If people are competent, they can do a lot of things pretty quickly.”
Clarification: This story was updated on January 8, 2021 at 3:15 p.m. ET to make it clear that the Center for American Progress is non-partisan but a liberal think tank.
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