Senate Republicans are signaling they will delay considering President-elect Joe Biden's nominee to run the Department of Health and Human Services, threatening to slow the Biden administration's response to the pandemic that has killed more than 283,000 Americans.
On Monday, Republican spokespeople for the committees responsible for vetting HHS nominations said the Senate may not hold hearings on California Attorney General Xavier Becerra, Biden's pick to lead the department, until the Senate approves committee assignments and other organizational details for the new Congress.
Republicans, who will hold at least 50 seats next year, remain in control of the Senate until Jan. 20. But Georgia has two Senate runoff elections scheduled for Jan. 5, and those results will determine which party controls the chamber in the new, 117th Congress.
Political observers say the results could take days or even weeks.
"Every day is a wasted day," said Kathleen Sebelius, who served as President Barack Obama's first HHS secretary. (Sebelius is on the board of KFF, and KHN is an editorially independent program of KFF.)
On Monday, Biden announced he has asked Becerra to serve as HHS secretary. Becerra mounted a vigorous defense of Democratic health laws against the Trump administration and other Republicans. He led the effort by 20 states and the District of Columbia to fight a suit brought by Republican state officials and supported by President Donald Trump to overturn the Affordable Care Act. That case was argued before the Supreme Court last month.
The early reaction from Republicans signaled Becerra could face strong political opposition to his nomination, with critics like Arkansas Sen. Tom Cotton citing Becerra's opposition to abortion restrictions and calling him "unqualified" to lead HHS.
"I'll be voting no, and Becerra should be rejected by the Senate," he wrote on Twitter. Becerra also supported single-payer health care reform.
In addition, Biden intends to name Dr. Rochelle Walensky, chief of infectious diseases at Massachusetts General Hospital, as the head of the Centers for Disease Control and Prevention, and private equity executive Jeffrey Zients to be his COVID "czar" heading up a task force in the White House. Those jobs do not require Senate confirmation. Biden is nominating Dr. Vivek Murthy as surgeon general, who must face hearings before the Senate.
Becerra would be the first Latino to lead HHS. Before becoming attorney general, he served in the House of Representatives, representing Los Angeles for 24 years. There, he was a member of Democratic leadership and served on the Ways and Means Committee, the House committee charged with writing health-related tax policy.
Becerra returned to California in 2017, replacing the outgoing attorney general who had just been elected to the Senate — now Vice President-elect Kamala Harris.
The HHS secretary is responsible for one of the federal government's largest departments, coordinating not only the Centers for Medicare & Medicaid Services but also the Food and Drug Administration and the CDC — agencies critical to the nation's pandemic response.
Although Biden has created his own task force to address the pandemic, the White House lacks many of the powers of the HHS secretary — including the authority to implement its own recommendations, said Donna Shalala, who served as HHS secretary under President Bill Clinton for eight years.
"Any delay [in confirmation] delays COVID, despite a strong White House coordination," Shalala said, "because you've got to get the agencies in sync and you can't do that from the White House."
In 2009, as H1N1 flu began to spread and Obama's first HHS pick withdrew from consideration, the administration was forced to improvise. With no confirmed health secretary, Obama turned to Janet Napolitano, the Homeland Security secretary, to coordinate a plan to distribute vaccines with the CDC.
Sebelius was sworn in as HHS secretary in late April, two days after the Obama administration declared H1N1 a public health emergency.
It would be hard to mount a pandemic response without a secretary, she said. "That pressure falls on Congress," Sebelius said. "There's just a sense we can't screw around with this."
She also added that the Obama administration did not pursue any lower-level health appointments before confirming the secretary, a protocol that left many offices vacant. She expects Biden will follow the same process.
The Senate can, and often does, begin considering nominees before a new president is sworn in, in particular by arranging one-on-one meetings for senators and examining a nominee's qualifications and background. Presidents Donald Trump and George W. Bush's nominees for HHS secretary both received confirmation hearings before Inauguration Day, though Democrats later fought Trump's nominee, then-Rep. Tom Price (R-Ga.), by boycotting his committee vote.
Republicans say that until the Senate approves what is known as an organizing resolution, which formalizes details like which senators sit on which committees, they cannot move forward with confirmation hearings.
A further complication is that while Republicans already control the two committees tasked with vetting an HHS secretary, neither chairman is staying in that job next year. Sen. Lamar Alexander of Tennessee, who runs the Health, Education, Labor and Pensions Committee, is retiring from Congress. And due to term limits, Iowa Sen. Chuck Grassley, who runs the Finance Committee, will move to a different committee.
Senate Democrats, who would take control of the confirmation process next month should they win both of Georgia's Senate seats, praised the selection of Becerra and promised to push for a speedy process.
Becerra "has been a staunch defender of affordable health care and preexisting condition protections in the face of Trump's attacks in court and federal regulation," said Oregon Sen. Ron Wyden, the Finance Committee's top Democrat. "I look forward to Attorney General Becerra's hearing in the Finance Committee as soon as possible next year, so he is on the job quickly."
"Xavier Becerra is a highly qualified nominee, and I will be pushing for a swift, fair confirmation so we can get to work on the serious health issues our nation faces," said Sen. Patty Murray of Washington, the HELP Committee's top Democrat.
If Democrats win both of the Georgia elections next month, the Senate would be evenly split 50-50, likely leading to debates about how to divide control and distracting senators from nomination hearings.
When that happened in 2001, Senate Democrats held the majority for a couple of weeks until Bush was sworn in, making Vice President Dick Cheney the tie-breaking vote and giving Republicans the majority on Jan. 20. Bush's first HHS secretary, Tommy Thompson, was confirmed four days later.
Bill Dauster, who advised Democrats on the Senate's procedural rules for decades, said that the split took a long time to negotiate in 2001 but that it left behind a model that senators can use today.
Senate Republicans could follow the precedent of holding hearings before the inauguration, especially due to the urgency of responding to the pandemic, Dauster said.
"If they don't, it will clearly be foot-dragging," he said.