Court challenges could keep the presidential race up in the air for weeks. But no matter who eventually occupies the White House, the next president will face a divided Congress, which makes passing major healthcare legislation an unlikely prospect over the next two years.
Many reform advocates pinned their hopes on a simple fix for the constitutional challenge to the Affordable Care Act in California v. Texas, which will be heard by the Supreme Court on Nov. 10. A Democratic Congress under a Joe Biden presidency could render the case moot by passing a $1 tax for failing to buy health insurance. Or it could restore 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 health insurance away from 20 million people or remove very popular protections like ensuring coverage for people with preexisting conditions.
But judges read election results, too. If we’ve learned anything from the politics of 2020, it is that laws and norms don’t count for much in this hyperpartisan era. Quaint legalisms like stare decisis or severability are weak reeds on which to hang one’s hopes for basic human decency. If readers of this magazine believe the ACA is worth defending, you need to make your voices heard—and with more than a legal brief written by lawyers.
Biden’s team also prepared a playbook for rolling back the Trump administration’s rules, regulations and executive orders that succeeded in lowering ACA exchange enrollment. As of this writing, it remains to be seen if they’ll get that chance.
Of more immediate concern, challenges in the presidential race could alter the fate of another pandemic relief bill. If the current Congress does address it in the lame duck session, why would the current occupant of the White House sign the bill if the election is still undecided or the courts determine he’s lost? Further pandemic relief may have to wait until next year.
Looking ahead to 2021, if Biden does win the presidency (which seemed likely at deadline), there’s no chance of passing his platform’s proposals for expanding health insurance coverage. Republicans 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, 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 Ways and Means Chairman Richard Neal of Massachusetts, will be any less next year no matter who sits in the Oval Office.
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 those high 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 companies, which 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.