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October 22, 2020

Nobody knows what will happen after the election. (But these 4 scenarios are possible.)

Daily Briefing

    The 2020 presidential election is fast-approaching, and health care has been at the forefront of everyone's mind. In this episode of Radio Advisory, host Rachel Woods sits down with Politico's Dan Diamond to talk about how the Trump administration has responded to Covid-19 and what issues health care leaders need to know this election season, including what a new Supreme Court Justice could mean for the Affordable Care Act (ACA) and what regulatory changes could come after the election.

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    Read an edited excerpt of the interview below and download the episode for the full conversation.

    Rachel Woods: I want to spend some time talking about the election itself, and I think it's important to remember that this is not simply a matter of President Trump keeping the White House versus former Vice President Joe Biden winning the presidency. Now, I'm not going to ask you to bet on an outcome, but I do want to play out a couple of hypothetical scenarios that I think our listeners need to be prepared for as it relates to health policy.

    So, let's say Trump does get reelected and the status quo approach that we've seen for the last four years continues. The Democrats keep the House but the Senate remains Republican. What policy priorities do you predict from the second term of the Trump administration?

    Dan Diamond: A lot of this is going to take a backseat to Covid-19, but let's say that Trump wins, we are in status quo land, and Covid-19 is resolved in the near future. There is still a big concern about surprise bills; that does cross party lines, and it was something we thought was going to be much more of a focus this year, so that could be resurrected.


    There continues to be a lot of interest from conservatives on cracking down on abortion access, and if Republicans control the Senate and can keep confirming judges, it will be that much easier to get challenges to abortion access through the courts—all the way up to the Supreme Court. That court looks like it's going to be 6-3 conservative majority and which might well strike down, if not Roe v. Wade, then the laws around Roe.

    And then I also think another big focus from Republicans might be trying to continue these alternatives to the Affordable Care Act. This was a big focus early in the Trump administration, the short-term limited duration plans. Some of these plans have been challenged in court, it's been controversial because these plans, public health experts argue, are not as comprehensive—they don't cover as much, they're cheaper, it's easier for patients to be stuck with big bills, and yet there are lots of Republicans who continue to argue that we need more options that aren't the ACA, and I think that will probably be a priority for Republicans to keep pushing on.

    Woods: On the flip side, let's talk about what the world could look like if Biden were to win. Again, I don't think there's actually one scenario here, so let's say that Biden wins the White House, the Democrats keep the House, but ultimately are unable to flip the Senate. What are the regulatory options on the table for Democrats?

    Diamond: I would point back to all of the regulatory moves that Trump himself made the past four years, where HHS was able to roll back either pieces of the Affordable Care Act, to make big changes to oversight. The Trump administration, for instance, launched a conscience and religious freedom division of its civil rights office, that's something that they didn't need Congress to help them do. And that office, which was pushed by conservatives who thought that religious liberty was taking a backseat to issues like abortion, that office is something that Democrats are not fans of, and I could see the Biden administration unwinding this new office, or finding ways to minimize it.

    I also think the Obama/Biden folks have been very keen to pick up some of the threads from the last administration on expanding coverage. So, could there be new regulations that allow Democrat-led states to do state-public options? Or to make expansions and coverage that were stymied by the Trump administration? Those are some of the regulatory things I could see moving forward and would be possible through the power of HHS and the White House.

    Woods: Now let's say that there is actually a true "blue wave." Democrats take the House, the Senate, and the White House. There were probably talking about some bigger changes to health policy. What're you thinking?

    Diamond: Well I think the changes go well beyond health policy. I mean, if Democrats take Congress back, there's probably going to be a change in the ability to use the filibuster, for example. There is also lots of talk about expanding the Supreme Court.

    Woods: Well let's talk about that actually, because this is interesting, and this brings me to, it's not just three scenarios, right? In the world that there is a blue wave but the decision is made to actually change the makeup of the court, from a legislative perspective, what could that mean for changes to health care?

    Diamond: Well, let's look at it this way--so the Trump administration came in with its own agenda on health care, and pushed things through like Medicaid work requirements or changes to protections for transgender Americans. Those changes were immediately challenged and worked their way up the legal system, ultimately rising in some cases to the Supreme Court or will soon be at the Supreme Court.

    If the high court is overwhelmingly conservative, it makes it that much more likely that the Trump administration's actions will be upheld. If the high court is somehow weakened in its conservative bed, if there are two or three new justices appointed by Joe Biden and the court doesn't have nine members anymore, it's got 11 or 12, it's going to be much harder for the court to uphold the Trump administration's bold changes.

    And then if Biden and his team end up pushing through their own changes in the next couple years, they will almost certainly be challenged, too, just like we saw all these legal battles over Trump's regulations. And what the high court does and whether it's a conservative-leaning court, whether it's more moderate, whether it's much bigger than it currently is, that'll be the final say in many respects on what Biden and his team are trying to do.

    So I feel like we can't undersell the importance of what happens with the high court enough, because Joe Biden, Donald Trump, they can push all these regulations through, they can craft ACA part two, but if the Supreme Court ultimately finds against them, then the regulatory impact is going to be very different than what either administration would want it to be.

    Woods: I think that's right. So I've got another kind of wonky scenario for you then. Again, let's say that there is a true blue wave, but the Supreme Court ultimately strikes down in some form the Affordable Care Act. What's the next move for health policy from the Democrats?

    Diamond I think it would depend on a bunch of things, including timing and how seriously the court struck down the law—would this be striking the entire law? Would it be striking part of the law?

    When Amy Coney Barrett was pressed about the ACA in recent days, she repeatedly hinted that she believes in the presumption of severability, so the mandate could be struck, but the rest of the law could be preserved, and someone like Chief Justice John Roberts has already signaled he believes in that, too.

    So, if the court finds against the ACA, it's really hard to think of a world where the whole law falls and Biden walks in with Democrats and they've got to either craft a new ACA, a more expansive set of coverage, or they try and make regulatory changes to preserve the ACA. Congress could still make a minor change, presumably, and address the mandate issue to effectively defeat the legal case against this idea.

    Woods: Meaning that it would be, say, you have to pay a dollar, which makes it a tax, nominal though, which essentially defeats the argument before the Supreme Court.

    Diamond: Exactly right. All Congress would have to do is make this minor change. Politically unpopular, perhaps, but it would preserve coverage if the ACA lawsuit is all that we're thinking about.

    But I don't know, I mean I think we're talking a few weeks before an election that could be drawn out for months, depending on what happens with voting and if the president or Biden chooses to contest.

    What that would do to legislative options for Congress, we have no idea. I mean, what if we're still fighting about who's going to be president in January and the Supreme Court has rendering a verdict on the ACA? Everything might come to a halt. So I don't want to prognosticate too much, just because we're in such unusual territory.

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