Dean M. Harris, J.D., Associate Professor (Retired), Department of Health Policy and Management, Gillings School of Global Public Health, University of North Carolina at Chapel Hill, USA, Dean_Harris unc.edu

Joe Biden and Kamala Harris, the candidates of the Democratic Party, have won the election for President and Vice President of the United States. This is good for democracy, human rights, and global health.

Some states may have “recounts,” but that will not change the outcome of the election. The current President, Donald Trump, from the Republican Party, has been making allegations of voter fraud, but he has no evidence of that. Trump’s campaign has also filed several lawsuits about the election, but those lawsuits are not supported by the facts. Even if a lawsuit by Trump were to raise a valid legal claim, the lawsuit would not change the result of the election as a practical matter. Federal courts do not consider legal claims which are purely theoretical.

Beginning on January 20, 2021, the Democratic Party will control the White House (the Executive Branch) and the House of Representatives (the lower house of Congress). There is a good chance that the Republican Party will still control the Senate (the upper house of Congress). Control of the Senate will be decided by two run-off votes in early January in the State of Georgia.

If Republicans keep control of the Senate, there will be limits on what the Biden administration will be able to accomplish. The Senate has power to block passage of legislation and appropriation of federal funds. Biden might be able to negotiate some compromises with the Senate. However, a Republican-controlled Senate might simply refuse to consider any of Biden’s legislative priorities or any bills passed by the Democratic-controlled House of Representatives. In addition to potential disagreements about policy and funding, the Senate might refuse to approve any legislation that could be viewed as a political victory for the new president.

Therefore, this paper will focus on what Biden can do without the approval of Congress. First, Biden has a totally different attitude from Trump about respect for truth, science, and expertise, as well as a genuine concern for the needs of other people. Biden will restore consideration of human rights as a fundamental element of US foreign policy, and he will work with other nations on global problems such as COVID-19 and climate change. For example, Biden has indicated that the US will rejoin the World Health Organisation and the Paris Climate Accord.

Without the need for approval by Congress, Biden’s officials in the Executive Branch will have the power to issue new federal regulations and repeal existing regulations that were issued by the Trump administration. Regulations to manage COVID-19 are not limited to agencies that focus primarily on public health, such as the Centers for Disease Control and Prevention (“CDC”) and the Food and Drug Administration (“FDA”). Rather, government strategy for COVID-19 requires a coordinated approach by a wide range of federal agencies that regulate activities such as safety standards for passengers on airplanes, labor standards for workers in meat-packing plants and other crowded settings, and standards for treatment of immigrants in detention facilities. In addition, under a federal statute called the Defense Production Act, a president may require companies to produce needed products such as ventilators or personal protective equipment (PPE).   

In managing COVID-19, Biden might be limited by Senate control over funding for testing and treatment, as well as funding for economic support that would relieve financial hardship and make lockdowns more acceptable to businesses and individuals. Senate control over funding could also make it more difficult to require people to wear masks in public. The federal government might not have the power to impose a comprehensive nationwide mask mandate, but state governments do have the power to adopt mask mandates within their states. In theory, Congress could use its “conditional spending power” to encourage state governments to adopt mask mandates, by making the state mask mandate a condition for receipt of specific federal funding to the states. However, that would require action by Congress including approval by the Senate.

Nevertheless, there are some potential sources of federal funding that might not require further approval by the Senate, such as money that was already appropriated by Congress but not yet spent by the Executive Branch. A president also has the power to declare an emergency under specific federal laws, and that declaration could allow the president to use some funding that was designated for disaster relief.

Aside from COVID-19, the 2020 US election will have significant effects on issues of reproductive health, both within the US and in other countries. For example, Biden has promised to cancel Trump’s Mexico City Policy, which is also known as the “Global Gag Rule.” The Mexico City Policy provides that foreign non-governmental organisations (NGOs) which receive specific funding from the US government may not use their own funds--or other funds--for activities related to abortion, including referral or advocacy for abortion. Presidents in the Republican Party routinely renew that policy, and Presidents in the Democratic Party routinely cancel it. In 2017, Trump not only renewed the Mexico City Policy, but also expanded that policy to apply to a much broader range of US government funding, including about $6 billion under the PEPFAR program for HIV/AIDS. In addition to cancelling Trump’s Mexico City Policy, Biden could stop US support for the Geneva Consensus Declaration, in which about 30 nations agreed that abortion is not an international right.

On the US domestic front, Biden could change FDA policy and regulations to make it easier, at least in most states, to obtain drugs for medical abortion by mail, with medical consultation by telehealth. Meanwhile, many people in the US are worried that the current right-wing Supreme Court might overrule the landmark precedent of Roe v. Wade. That 1973 decision guarantees a woman’s constitutional right to make her own decision about abortion at an early stage of pregnancy, and even at a later stage of pregnancy under some circumstances. After the death of Justice Ruth Bader Ginsburg, Trump nominated and the Senate quickly confirmed a new justice who is expected to shift the balance on the Court against reproductive rights. This is a serious concern. Even if the Supreme Court does not overrule Roe v. Wade, the Court could severely limit access to abortion, by interpreting that decision in ways that give state governments more flexibility to impose barriers for access to abortion.

Finally, Biden could take steps to promote health insurance coverage and health reform in the US, although the extent of his power would be limited if Republicans keep control of the Senate. In 2010, Congress enacted President Obama’s health reform law, which is called the Affordable Care Act (“ACA”). The ACA protects people who have preexisting medical conditions, and it currently provides health insurance for about 20 million Americans. Republicans have repeatedly tried and failed to terminate the ACA by Congressional efforts to repeal the law, challenges in federal courts, and administrative actions to undermine its effectiveness.

The Republicans’ latest effort to eliminate the ACA is a constitutional challenge, which is currently pending before the US Supreme Court. Several Republican-controlled states and the Trump administration are arguing that the ACA’s lack of a financial penalty or tax for failure to have insurance makes the entire ACA unconstitutional. As a practical matter, Trump and Republican states are trying to take away health insurance from 20 million people during a raging pandemic, and they are trying to take away protections for people with preexisting medical conditions, without any realistic plan to replace the ACA. During oral arguments before the Supreme Court on November 10, 2020, it appeared that the Court is not likely to terminate the entire ACA, but the Court might not issue its decision until June of 2021.   

Assuming that most provisions of the ACA will survive this latest court challenge, Biden could take some limited steps to improve the effectiveness of the ACA, even without action by the Senate. First, Biden could reverse Trump’s administrative actions that made it more difficult for people to enroll in ACA insurance or discouraged people from enrolling. Second, Biden could reinstate regulations of the Obama administration that were cancelled by Trump, such as Obama’s regulation which prohibited discrimination by health care facilities against patients on the basis of their gender identity. Finally, Biden could strictly enforce existing statutory requirements for state governments that request waivers from the ACA to create their own state systems of universal health insurance. This would ensure that any proposed state system really satisfies the statutory conditions for comprehensive insurance benefits.

In conclusion, even without approval by the Senate, there are many things that Biden can do to promote health care and global health. Even before his inauguration, Biden has already made it clear that he will rely on science and expertise in addressing COVID-19 and other serious problems of public health.

This blog was originally posted on the website of Global Health Law Groningen.