Biden wants to restore Obamacare. He may have trouble.September 15, 2020
Joe Biden may not be able to unwind everything President Donald Trump has done to diminish Obamacare.
Despite Trump’s failure to repeal Obamacare, he’s forced changes on the health care system that Biden will find hard to immediately reverse, if at all. Trump’s expansion of skimpier health insurance alternatives to Obamacare, curbs on reproductive health funding and rollback of contraception coverage have been upheld in the courts. Efforts to reverse those policies are likely to draw legal battles in a court system that will bear the imprint of Trump’s conservative appointees for years.
And it’s no sure bet that Biden’s plan to build on Obamacare has a clear path in Congress, especially if Republicans keep their hold on the Senate. The unrelenting partisan divide over Obamacare has left lawmakers unable to make minor fixes to the law a decade since its passage, let alone a major revamp of how Americans get coverage. Powerful health care lobbies, despite backing Biden’s call for more Obamacare funding, have been preparing a ferocious assault against the public option, a centerpiece of Biden’s health plan.
Biden’s campaign and Democratic strategists insist that the coronavirus emergency, which has left millions more jobless and lacking health insurance, has boosted support for comprehensive legislative action on health care. “The pandemic has made clear to people how important it has to have consistent health coverage,” said Biden policy adviser Stef Feldman.
But Democratic health care experts are also zeroing in on quicker, unilateral fixes that may let Biden navigate around a potentially paralyzed Congress to beef up health care coverage. In the face of congressional intransigence, both Trump and former President Barack Obama wielded executive power to influence the health care system with varying degrees of success.
“I think [Biden] will want to do what he can by legislation and otherwise look to regulations to fulfill his promises and try to reshape the health care system,” said Henry Waxman, a longtime former Democratic lawmaker who helped write Obamacare and now runs a lobbying firm.
Here’s how those experts think Biden could push forward his health agenda without Congress — and where he may have trouble reversing Trump policies.
Biden’s campaign said it is already considering immediate steps to get more people covered during a pandemic that’s expected to stretch into next year, even if by his inauguration there’s an approved coronavirus vaccine that’s just starting to reach people. Biden could take emergency action Trump has rejected, like broadly reopening Obamacare’s insurance marketplaces to the uninsured and restoring funds for enrollment outreach that Trump gutted. Those measures would be relatively easy to push through.
Kavita Patel, a Brookings Institution fellow who advised Kamala Harris' presidential campaign on health care, also suggested Biden may be able to use emergency powers — the same powers Trump used for border wall construction — to temporarily fund more subsidies to help make health insurance more affordable.
However, cutting off a Trump-backed alternative to Obamacare health plans may be more difficult. Trump two years ago issued rules greatly expanding the availability of short-term health insurance plans, which are typically cheaper than Obamacare plans because they cover fewer benefits and typically don’t cover preexisting conditions. Republicans say the plans provide an affordable alternative to people priced out of Obamacare coverage, but Democrats contend they provide only the illusion of coverage and would undermine the Obamacare marketplaces.
A federal appeals court this summer upheld the Trump short-term plan rules, finding that the policy didn’t conflict with Obamacare. Biden’s efforts to reverse Trump’s expansion would likely draw a challenge. Hundreds of thousands of people are believed to have enrolled in the expanded short-term plans.
“The argument was expanding short-term plans is going to hurt the exchanges, and that just hasn’t been the case,” said Brian Blase, a former Trump health policy adviser who helped shape the administration’s short-term plan policy.
Democrats may also look curtail short-term plans through legislation. A House-approved bill this summer included a provision striking down Trump’s expansion of short-term plans, but it went nowhere in the GOP-led Senate.
The biggest wild card remains a looming Supreme Court case involving a GOP-backed challenge to Obamacare. The justices, who will hear the case exactly one week after Election Day, aren’t likely to throw out the entire law when they render a verdict, likely early next year. However, legal observers say it’s possible the conservative-leaning court could pick apart coverage protections for preexisting conditions, which could force a major scramble to shore up the insurance markets.
Medicaid work rules
Trump’s approval of the first-ever Medicaid rules requiring some people to work or volunteer as a condition of coverage were a major victory for conservatives who opposed Obamacare’s massive expansion of the safety net program to poor adults. However, after court rulings against work rules, the policies have been on hold in the roughly dozen, predominately GOP-led states that had received permission from the Trump administration.
The work rules aren’t entirely dead yet, though. The Supreme Court is expected to soon decide whether to hear the administration’s request to revive them. Legal experts are skeptical the justices will take the case, given the strong decisions against the work rules in lower courts. But if they do, and the Supreme Court’s conservative majority upholds the work rules, the states that have already won approval from the Trump administration could insist on keeping them — even if Biden’s administration would forbid additional states from implementing the policy.
Meanwhile, Biden is resolved to extend coverage to millions of poor adults who have been shut out of Medicaid expansion in the dozen states that have refused the program. His public option plan would automatically provide zero-premium coverage to poor adults in those Medicaid expansion holdout states.
Should he fail to get the public option through Congress, Biden is likely to explore policies that could help convince conservative governors to expand Medicaid, a former Obama administration official said.
“If one door closes, he’ll look at others,” the official said.
A Biden administration would face pressure from Democratic-aligned groups to eradicate a slate of socially conservative health care policies advance by the Trump administration. That’s not likely to happen quickly, given the slow pace of overhauling regulations and lawsuits likely to follow.
The Supreme Court this summer upheld the Trump administration’s sweeping exemption from the contraceptive coverage mandate under Obamacare. The decision, which lets employers broadly claim a religious or moral exemption to providing free birth control to female employees, could result in 126,000 women losing contraceptive coverage.
The case was the third time the coverage mandate came before the Supreme Court since 2014, and its liberal wing suggested that the matter hasn’t been entirely settled.
Biden will also seek to reverse Trump’s decision to cut out Planned Parenthood and other abortion providers from the $250 million-plus Title X family planning program. Planned Parenthood, which was the single-largest recipient of Title X funding, and some states withdrew after Trump’s restrictions took effect.
Trump’s rollback of anti-discrimination rules for transgender patients — as well as his broad protections for doctors, hospitals and others who refuse to perform abortions, gender transitions or other services that violate their conscience — are all embroiled in litigation that promise to drag out for years. Biden’s expected reversals of these regulations would invite more legal challenges from red states.
"[California Attorney General Xavier] Becerra is celebrating the 100th lawsuit against Trump — [Texas AG Ken] Paxton will be just as excited,” said Katie Keith, a health law professor at Georgetown University. “Republicans won’t be any less litigious, and then you remember the 200 judges Trump has appointed — whatever challenges will be argued before arguably more sympathetic judges.”
Biden plans to wipe away one of Trump's most bitterly contested immigration policies, which could limit health care coverage and other public benefits for groups hit especially hard by the pandemic.
The administration's "public charge" rule, which makes it harder for immigrants who rely on Medicaid, food stamps and other programs to get permanent residency status, has been in effect since early this year, even as Democratic attorneys general and immigration advocates battle the policy in court. It's unclear how many people may be affected by the rule, but advocates said it discouraged some immigrants to seek out benefits even before it took effect. About 20 percent of immigrants with children said they had skipped food stamps, Medicaid or housing subsidies because they feared losing out on a green card, according to an Urban Institute analysis last year.
Medicaid law expert Sara Rosenbaum of George Washington University said Biden could freeze the public charge rule in light of the pandemic while rewriting it — though that's likely to spark another legal battle from the right. The Trump administration already said it would partially ease enforcement during the pandemic, declaring that an immigrant's status wouldn't be affected by seeking out Covid-19 care.
“Quite frankly, Trump showed us the way,” Rosenbaum said.