Read: The Democrats’ Supreme Court Hail Mary
That will put a premium on good and creative lawyering. How can federal agencies move quickly while minding their p’s and q’s?
There’s no single answer to that question; instead, much will depend on the specific legal rules that apply to different types of policies. Some will be easy to reverse—President Biden can rejoin the Paris climate accords without much fuss. Others will be harder—undoing the rollback of habitat protections for threatened species under the Endangered Species Act, for example, may require a cumbersome notice-and-comment process.
Nowhere will the trade-off between speed and procedural regularity be posed more starkly than in the context of Medicaid work requirements. Addressing them will be an early test of the Biden administration’s nimbleness and competence.
On the long list of the Trump administration’s bad policies, allowing the states to impose work requirements on Medicaid recipients ranks high. Such requirements serve no good purpose: Data show that they don’t serve their ostensible goal of increasing employment. All they do is create onerous paperwork and strip poor people, potentially 4 million of them, of their health insurance.
Still, 19 Republican-controlled states asked the Trump administration to waive parts of the Medicaid statute to allow them to impose work requirements. The Trump administration has so far granted eight such waivers, but, for now, federal courts in Washington, D.C., have ruled that they’re illegal. The courts’ reasoning is simple: By law, a Medicaid waiver has to advance the program’s core objective, which is providing health coverage. Taking insurance away from people doesn’t advance that objective; it’s inimical to it.
The human cost of work requirements
The courts’ opinions are strong and well reasoned. Last month, however, the Supreme Court agreed to hear two cases about the validity of work requirements in Arkansas and New Hampshire. It’s possible—even likely, as I’ve written elsewhere—that work requirements may get a sympathetic hearing from the conservative justices. If so, the waivers could spring back into effect—in the midst of a global pandemic, no less.
A decision upholding work requirements would also set a dangerous precedent. Absent Supreme Court intervention, as Ian Millhiser noted at Vox, “a future Republican administration would likely have to spend months or even years litigating the question of whether work requirements are permitted.” But if the Supreme Court blesses the requirements, Republicans could quickly move to impose them the next time they win the White House.
So the race is on for the Biden administration to withdraw the waivers before the Supreme Court issues its decision, probably sometime in May or June.
Easier said than done. By regulation, the secretary of the Department of Health and Human Services—Xavier Becerra, if he’s confirmed—can withdraw waivers when he concludes that they no longer advance Medicaid’s purposes. In doing so, however, HHS has to abide by certain procedures it agreed to follow when it granted the waivers.