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President-elect Joe Biden delivers a remarks on the economic recovery in Wilmington, Delaware on Monday, November 16, 2020. (Photo: Salwan Georges/The Washington Post via Getty Images)

President-elect Joe Biden delivers a remarks on the economic recovery in Wilmington, Delaware on Monday, November 16, 2020. (Photo: Salwan Georges/The Washington Post via Getty Images)

With Pandemic as National Emergency, Biden Could Enact Medicare for All by Executive Action—But Will He?

"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."

Kenny Stancil

Journalist David Dayen presented a convincing case Tuesday that President-elect Joe Biden, once sworn into office come January, would have the legal authority to immediately provide complete Medicare coverage to everyone in the country via executive action due to the Covid-19 pandemic—though the very serious question remains: would he?

During the primary season in March, Biden said he would veto a Medicare for All bill should one ever reach his desk, but with the coronavirus infection rate surging—and some scenarios projecting an overall death toll as high as 360,000 by the time the inauguration takes place—is it possible that conditions on the ground could move him on the popular demand for a single-payer solution to the nation's public health crisis?

"I do not expect Joe Biden to use this power on Inauguration Day to instantly turn the United States into a single-payer country," Dayen wrote in The American Prospect. "But there's nothing in the law that would appear to prevent him from doing it."

According to Dayen, the government has "pick[ed] up the exorbitant healthcare costs for individuals... subject to a dangerous environmental hazard" before. Explaining the precedent, he wrote:

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

While Section 1881A was used to protect the residents of Libby who were exposed, "through no fault of their own," to deleterious conditions "that would trigger long-term medical complications," Dayen noted that "the language of the statute refers to any individuals subject to an 'environmental exposure'" and therefore conveys a principle that could be applied more broadly. 

What is the coronavirus pandemic, if not a public health catastrophe on a much grander scale than the one experienced in a small town in Montana?

"There's an environmental health hazard spreading through the entire country right now," Dayen wrote. "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."

By invoking Section 1881A, Dayen continued, "the incoming Biden administration can give all 11 million people infected with Covid-19 [or] all Americans who have tested positive for coronavirus the option of free Medicare coverage, immediately."

"The executive branch is also given the authority to establish 'optional pilot programs' to any area subject to a public health emergency declaration," which, according to Dayen, means that "HHS could create a specific pilot program around Covid-19."

The entire United States has been under a public health emergency since near the beginning of 2020 due to the coronavirus pandemic. As Dayen explained, if Biden's Environmental Protection Agency administrator declared "a separate public health emergency under the Superfund law to comply with the statute," then individuals who "have spent six months in the geographic area subject to the emergency"—the whole country—would be eligible for Medicare. 

Dayen added:

We know that there are going to be specific long-term costs from Covid-19. While we're still learning about "long-haul" Covid-19 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. 

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.

While nobody should bet on a lifetime opponent of Medicare for All suddenly reversing course and using the pandemic "as a pretext" to enact truly universal healthcare, Dayen explained, the reality is 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." 

Moreover, Dayen argued that "the kind of creative policy thinking" represented by Section 1881A "reflects exactly how a Biden administration needs to be thinking."

"The creative application of existing laws... is going to be required... to make progress for the American people," Dayen noted, especially if Georgia's runoff Senate elections result in the Republican Party maintaining control of the upper chamber of Congress.

Dayen's argument echoes points made on Monday by left-wing author and organizer Astra Taylor in an op-ed in The Guardian

Challenging the notion that Biden won't be able to accomplish anything due to GOP intransigence, Taylor wrote that "we must remind the incoming administration of the power it possesses, even if the circumstances are less than ideal."

"There's actually a lot that a president can do with a divided or weak Congress if they have a spine," Taylor said.

If Biden "wants to respond to the tragedy of coronavirus by giving millions of people public health care, he could," Dayen pointed out. "And he should be thinking about how to do a whole lot more... that would have tangible and enduring benefits for people," such as using executive power to cancel all federal student loan debt.

As Taylor put it:

We simply cannot accept the idea that it will be impossible for Biden to govern. He has a progressive mandate and must use all the power at his disposal to materially improve people's lives and boost public morale. We are in a public health and economic crisis; if he doesn't act decisively, Democrats will face a bloodbath in 2022 or 2024. The fascist threat of Trumpism is not going away. If anything, we've learned that Trumpism is very popular. But [Senate Majority Leader] Mitch McConnell is not the president, and his influence must be diminished as much as possible, which will require Biden to do something not in his nature—fight Republicans.

"There is a belated and growing awareness that our political institutions are the actual problem," Taylor continued. "At long last, liberals are talking about the foundational flaws and structural imbalances that shape our reality—the malapportionment of the Senate, the Supreme Court's rightwing tilt, the absurdity of the Electoral College, the pathologies of winner-take-all elections, and so on."

Taylor said that "we must further delegitimize these arcane and anachronistic institutions and recognize the ways they sabotage the progressive will of the majority of American people, turning our ostensible democracy into an oligarchy."

"And," she added, "we have to be aware one party is determined to exacerbate this descent into despotism. Republicans want to further enshrine minority rule, forcing Democrats to have to win an ever-larger share of votes in older to hold power. Republicans are increasingly at war with democracy itself."

According to Dayen, "it does not violate any notion of our system of government for the chief executive to look for creative ways to use those... powerful authorities [placed] in the president's lap [by] the legislative branch since 1789."

Alternatively, Taylor argued that "it's better to not be sanctimonious and romantic about 'institutions' and 'norms.'"

"The norms are the problem," Taylor wrote. "And if we're going to ever have anything approaching justice, we will have to bust a lot of them."

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