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Through a range of laws that vest power in the president, Biden could creatively address the COVID crisis.
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
The people of Libby, Montana, population 2,628, share something in common with the rest of the developed world, but not their compatriots in the United States. They all have access to a single-payer, Medicare-for-All system.
As part of the Affordable Care Act, the residents of Libby, who were exposed to hazardous airborne asbestos from a vermiculite mine owned by the W.R. Grace Company, were made eligible for Medicare, for free, at the discretion of the Social Security Administration and the Department of Health and Human Services (HHS). It was codified in Section 1881A of the Social Security Act. The language of the statute refers to any individuals subject to an “environmental exposure,” though it was well understood at the time that this was about Libby.
The fact that the chair of the Senate Finance Committee, Max Baucus, hailed from Montana played no small part in creating Medicare for All Libbyians. But the principle was solid. Through no fault of their own, these residents were subject to a dangerous environmental hazard that would trigger long-term medical complications. The government considered it only right to pick up the exorbitant health care costs for these individuals.
There’s an environmental health hazard spreading through the entire country right now. It’s infecting people unsuspectingly and killing hundreds of thousands. It’s bound to saddle those who survive with long-term and potentially debilitating health consequences. And using Section 1881A, the incoming Biden administration can give all 11 million people infected with COVID—and if they want to be really aggressive—all Americans who have tested positive for coronavirus the option of free Medicare coverage, immediately.
Since 1789, the legislative branch has been placing a set of powerful authorities in the president’s lap.
I do not expect Joe Biden to use this power on Inauguration Day to instantly turn the United States into a single-payer country. But there’s nothing in the law that would appear to prevent him from doing it. This is the larger point. The United States Code doesn’t make for scintillating leisure reading, but buried in it are countless options for a president to help people. And once you start orienting yourself in that fashion, thinking about what you can do under the law rather than what you cannot, the possibilities really open up.
The primary pilot program in Section 1881A is the Libby, Montana program. But the executive branch is also given the authority to establish “optional pilot programs” to any area subject to a public health emergency declaration. The entire United States has been under a public health emergency since January 31, 2020, due to the coronavirus. (It’s possible that the Environmental Protection Agency would have to declare a separate public health emergency under the Superfund law to comply with the statute, but Biden’s EPA administrator could easily do so.) Individuals eligible for Medicare would have to have spent six months in the geographic area subject to the emergency; since the area is “the entire United States,” this should not be a problem, either.
At that point, the individual with exposure to the environmental hazard files an application for Medicare benefits, and receives them if they meet the proper criteria. The statute cites that those eligible for benefits must have a diagnosis of ailments like mesothelioma and other consequences from asbestos exposure. But an addendum at the bottom makes the statute applicable to any individual exposed “to a public health hazard to which an emergency declaration applies, based on such medical conditions, diagnostic standards, and other criteria as the Secretary specifies.” Cutting through the legislation-ese, this means that HHS could create a specific pilot program around COVID-19.
We know that there are going to be specific long-term costs from COVID-19. While we’re still learning about “long-haul” COVID patients, it is possible that they could experience a lifetime of health problems from their infection, whether through severe lung damage, heart failure, or gastrointestinal complications. The cost of managing these difficulties will be high, and probably out of reach for most people. It’s cost-effective to put them on Medicare and ensure that they don’t have to go bankrupt because they were unlucky enough to contract the virus. America did something similar with kidney disease under Richard Nixon and for first responders with respiratory problems after spending time at 9/11 cleanup sites. But unlike those two programs, which required Congressional action, a president invoking Section 1881A could do this through executive action, rather than having to get a new law through Congress.
If you really wanted to push it, you could do what they did in Libby: give Medicare to everyone, whether they showed symptoms or not, based on the potential for an environmental exposure. As long as the runoff from the W.R. Grace mine was still in the air, residents of Libby needed the peace of mind that they would be covered from the health consequences. The entire U.S. public needs that same kind of reassurance in the face of coronavirus.
Yes, Joe Biden ran against a single-payer system in the election. (He did run on free coronavirus treatment for all of those infected, and triggering Section 1881A would do just that. This declaration could also guarantee a free vaccine.) He’s not likely to make the incredibly aggressive move to use COVID as a pretext to give everyone the option for government-run healthcare. That’s just reality.
But it’s also reality that Biden has this option to protect people suffering from coronavirus, and even those afraid to get tested because they know they cannot afford treatment. Furthermore, Section 1881A is the kind of creative policy thinking that’s going to be required of a Biden Administration on day one if it wants to make progress for the American people, especially if Mitch McConnell and the Republicans hold onto the Senate.
Maybe Biden doesn’t want to instantly create Medicare for All. But through a range of laws that vest power in the president, he could seize drug patents to dramatically lower the cost of prescription drugs. He could change bad Obamacare rules that cost low-income families using the exchanges roughly $2 billion every year. He could do all kinds of things laid out in the Day One Agenda that would have tangible and enduring benefits for people.
Since 1789, the legislative branch has been placing a set of powerful authorities in the president’s lap. It does not violate any notion of our system of government for the president to look for creative ways to use those authorities; in fact, it’s the very job description of the chief executive. If President-elect Biden wants to respond to the tragedy of coronavirus by giving millions of people public health care, he could. And he should be thinking about how to do a whole lot more.
