How might Xavier Becerra operate as HHS Secretary?

California consumer rights groups have high hopes for Xavier Becerra, President Joseph Biden’s nominee to lead HHS, while some lawyers suggest he might further aggressive antitrust efforts he took in the state as attorney general. 

Becerra has made headlines since leaving the House of Representatives, in part by leading the efforts of blue states to defend the Affordable Care Act, now under threat in a case brought by Republicans and backed by the Trump administration at the Supreme Court. Less high-profile, perhaps, were his efforts to block major hospital mergers in California.

While conservatives have expressed concern about Becerra’s support of “Medicare for All” while in Congress, lawyers said he is seen by many as a competent administrator. If confirmed, Becerra will head a sprawling agency with a $1.4 trillion annual budget, nearly double that of the Defense Department.  

The post would be the first non-elected job Becerra has held in more than 30 years. He spent two years in the California Assembly and 24 years in the House of Representatives before being appointed AG in 2016 by then Gov. Jerry Brown. He won election to the post in 2018.

Becerra would also become the first Latino HHS Secretary. The child of Mexican immigrants was the first in his family to graduate from college. 

Becerra is somewhat of a unique choice. HHS Secretary has typically been the domain of former governors (Kathleen Sebelius, Tommy Thompson, Otis Bowen, Mike Leavitt and Abraham Ribicoff) and physicians (Tom Price and Louis Sullivan). Although he would not be the first secretary to have served in Congress, Becerra may be the first nominated while holding a statewide office other than governor.

The 63-year-old Becerra was previously considered for the position of U.S. Trade Representative by former President Barack Obama more than a decade ago, but turned it down.

The HHS post is arguably of much greater influence. And Becerra has a deep background in healthcare policy.

“He’s very experienced and knowledgeable in the healthcare field,” said Bernard Nash, co-chair of the state attorneys general practice of Cozen O’Connor in Washington, D.C. Nash noted that Becerra first began making a name for himself in the field when he sat on the health subcommittee of the House Ways and Means Committee.

Anthony Wright, executive director of Health Access, one of the California’s most influential advocacy organizations for the expansion of healthcare services, agrees that Becerra has strong healthcare credentials.

“During the battles to pass the ACA, other members of Congress got more attention, such as (Henry) Waxman, (Pete) Stark and (George) Miller, but Becerra was right there the entire time,” Wright said. He adds that Becerra did more than virtually any other member of Congress to promote ACA implementation and enrollment.

Wright also praised Becerra for pursuing legislation seeking to rein in pharmaceutical companies trying to delay their products becoming open to generic manufacturers. He also noted that he played a big role in aggressively policing hospital mergers, including blocking a proposed deal between Northern California hospital operators Adventist Health and St. Joseph Health in 2019, and adding stringent conditions to Cedars-Sinai Medical Center’s proposed affiliation with Huntington Hospital in Southern California.

Lori Kalani, another attorney at Cozen O’Connor, had a phone call just with Becerra prior to the election. She noted that he stressed putting a top priority on his healthcare antitrust work.

“Will he coordinate with the (U.S.) Attorney General on a more national scale? My sense is that he probably will,” Kalani said, although she added it might be done fairly discreetly.

Becerra’s office also sued Sutter Health for antitrust violations, securing a settlement last year expected to significantly modify the way the Sacramento-based hospital chain conducts business moving forward. He has also filed scores of lawsuits against the Trump administration over its administration of the ACA.

“I am optimistic he is going to be a solid choice,” said Harry Nelson, a Los Angeles attorney and author of two books on healthcare policy. Nelson noted Biden wanted someone with top administrative skills in the position who is able to competently delegate tasks to experts.

Nash concurred. He noted that Becerra has been considered a highly competent manager of the AG’s office, which has a $1.1 billion annual budget and nearly 5,000 employees.

Perhaps not surprisingly, conservatives are looking at Becerra’s nomination with more skepticism.

Sally Pipes, CEO of the Pacific Research Institute in Pasadena, argued Becerra will implement what she calls “Bidencare,” a stepping stone toward single-payer healthcare that began with the ACA. Pipes indicated that is based on Becerra’s years in Congress, when he was a vocal advocate of Medicare for All.

Nash believes Becerra would not take on such a bold initiative without Biden’s approval.

“Internally he may advocate for Medicare for All, but I don’t think he’s going to be the last one holding that flag up if the president indicates he wants to be more balanced in his approach,” he said.

But Sen. Mike Braun, an Indiana Republican, echoed Pipes’ fears in an opinion piece for The Hill that Medicare for All might become a reality. “Becerra was the ringleader of the far-left’s resistance movement,” during his tenure as California AG, Braun claims. He urged Biden to pick another more qualified candidate, but did not make any suggestions. Braun did not say whether he would vote against Becerra.

And while Becerra was nominated by Biden on Dec. 7, he has yet to have a Senate hearing as Republicans stalled procedures while a power-sharing agreement was debated. Although Biden’s other cabinet picks have sailed through with relative ease, an even split in the Senate may make the vote close. Sebelius and Shalala blamed the delay on hearings to GOP resistance to Becerra, and doing so now was particularly dangerous in light of COVID-19.

“Delaying him means delaying filling all the other key roles under him at HHS that are critical for our pandemic response,” they wrote in USA Today.

Posted in Law