In January, there will be a divided government. This severely restricts the possibility space for legislative health policy. Anything that can pass Congress will need Speaker Pelosi and likely Majority Leader McConnell’s agreement. I am not sure that there is all that much that will fit that description. There might be a chance of something on prescription drugs. There might be a chance on something getting to the White House on balanced billing that may be very favorable to clinical interests, but there is no agreement zone for large expansions of public insurance coverage.
Policy will be in the courts and in the executive branch.
As of my most recent cup of coffee, it looks more likely than not that the President on January 21st will be Joe Biden as he is building a lead in Wisconsin and has closed the gap in Michigan with several hundred thousand votes from Detroit still to be processed. I think that there will be significant continuity on the development and deployment of alternative payment models in Medicare and Medicaid. There will be little administration interest in promoting and increasing administrative burden as a barrier to accessing public programs. There are some ideas floating around on the ACA exchanges that will make things better on the margin. I am confident that the Biden Administration will have a much better APA record in the courts than the Trump Administration.
The first big question on the courts is if they sever the individual mandate from the rest of the law in January or February. The courts are going to be heavily tilt conservative as I don’t think Biden will get many judges confirmed in a world where McConnell has demonstrated that all that matters is who controls the agenda and who has 51 votes. He is likely to control both. For the ACA case, the Supreme Court has lots of options from least disruptive to most disruptive:
- Standing –> could you please explicate your precise injury for being subject to a $0 penalty that is not being enforced?
- Still a tax –> a future Congress could raise money this way
- Sure, you’re right, but totally severable so the mandate goes away, the exemptions to the penalty go away and nothing else.
- You’re right, all of the individual market goes boom
- You’re right, everything goes boom.
This is where my head is at on a policy basis this morning.
On The Road – ?BillinGlendaleCA – The Chinese Garden (Enbiggened)
Yarrow
Thanks, David. Your posts are always so helpful. It’s been clear to me for several years now that my government wants me dead. I’m prepared for the ACA either to be tossed out or gutted in such a way that it’s useless or out of reach for me. Oh well.
Ohio Mom
Ohio Family may squeak by: I’m on Medicare, Ohio Son has a Medicaid Waiver (here I am counting on bipartisan pity for the disabled to be maintained); Ohio Dad has COBRA locked in until he turns 65, with not a day to spare.
Yarrow, for what it is worth, we are all pulling for you. At least your doctors are committed to keeping you going, let’s hold on to that…
Thumb Weaver
The courts already tilt conservative, which is why Biden might not be the guy nominating judges.
Anonymous At Work
Legislative Intent was not to repeal mandate by the use of budget reconciliation and further reliance on the ACA as a whole for the first stimulus bill.
BUT all non-repeal options require 2 conservatives willing to disappoint and/or play a longer game.
Yarrow
@Ohio Mom: Lol. I can’t afford to go to doctors. I go very infrequently because it’s too expensive.
LongHairedWeirdo
@Anonymous At Work: Yes; in addition to the standing issue, the courts have to completely ignore the legislative intent, instead going by an argument made earlier, that has since been proven false.
That is: supporters of the ACA said that the mandate was absolutely necessary, to prevent implosion of the market – the death spiral, where people only get insurance if they’re sure they’ll need it, causing prices to rise for everyone, until no one can afford it.
They’ve been proven wrong – with no penalty, the market places haven’t imploded.
Alas, Republicans don’t have an understanding of time. For example, since Europe is having problems containing Covid-19, that *proves* that Trump couldn’t have contained it in the spring, all through the summer, or the earlier fall, because. (Yes, I know, normally “because” has reasoning following it, but the Republicans stopped reasoning somewhere around 9/12/2001, it seems.)
And, of course, while it’s considered improper to assume a judge is acting from personal motives in writing a decision, it’s time to stop being politically correct, and acknowledge that Republican judges can, and do, act from personal motives, or are so intellectually inept they should be removed.
Bob Hertz
Richard Epstein is about as conservative a legal scholar as you can get, and he thinks that the Court will vote 9-0 in favor of severability….in other words, the ACA law stands even if the mandate is unconstitutional. Jonathan Adler and other scholars agree.
Still, when you look at the unsubsidized ‘raw’ premiums in many states, compared to before the ACA, you might think that the individual market has already imploded. Guaranteed issue always causes an increase of at least 50-70% in premiums. It did so in NY, NJ, Ky, and WA long before the ACA, and it has done so again.
I happen to favor the subsidies and want them expanded, but in most states we have already had the actuarial crash that we have been warned about.