THE BLOG
01/12/2015 03:09 pm ET Updated Mar 14, 2015

Scott Walker Exposes the Fiction Behind King v. Burwell

ASSOCIATED PRESS

Coauthored by Joey Meyer

Despite all the rhetoric against Obamacare, conservative governors and state officials aren't exactly lining up to join the latest Supreme Court challenge designed to gut the Affordable Care Act. This weekend, the New York Times reported that only a meager six state attorneys general have signed onto a brief supporting the plaintiffs in King v. Burwell. To see why, just listen to Governor Scott Walker, whose comments in 2013 controvert the central claim in King.

The plaintiffs in King argue that the Affordable Care Act's premium tax credit (or subsidy), which makes health insurance affordable for the vast majority of ACA participants, was intended only for state-run insurance marketplaces (or Exchanges) and explicitly not for states that opt for the federal government to operate their marketplace. The threat of withholding the tax credit, the plaintiffs argue, was Congress' way of coercing states into running their own marketplaces.

But in February 2013, Governor Walker unveiled a health care proposal explicitly predicated on the assumption that eligible Wisconsinites who purchased insurance through the federally-run marketplaces in his state would receive the tax credit. He assured his citizens that low- and moderate-income Wisconsinites could afford health insurance, even though Wisconsin had not established its own marketplace, because "the Exchanges under the Affordable Care Act provide a subsidy to make the health care Exchange affordable."

Watch the governor's remarks here:

Watch the governor's full speech here.

This isn't the first time that remarks from Scott Walker have dashed the credibility of the King challenge. Last week, Think Progress reported that the governor had explained in an interview with the Wall Street Journal that "there's no real substantive difference" between federal and state-run Exchanges. Walker's former top health official, Dennis Smith, has contended that Walker was referring in that comment only to the degree of control he would exercise over the Exchange. Smith stated that "people who are trying to pull the subsidy issue into the governor's comments are just wrong." But in light of this new evidence, it is clear that Governor Walker understood the tax credit to be available on federal marketplace, and he fashioned a policy proposal around this result. It's Mr. Smith that's "just wrong" in characterizing his former boss's remarks.

One of the most vocal opponents of the ACA, Walker understood exactly what Congress intended: that tax credits are available to low- and moderate-income individuals who purchase insurance through an ACA marketplace, regardless of who operates the marketplace in their state. And Walker clearly wanted that interpretation to prevail because it allowed him to criticize Obamacare, refuse to establish a Wisconsin Obamacare Exchange, while simultaneously ensuring that Wisconsin citizens retain one of Obamacare's most generous benefits: the tax credits.

Walker's understanding is almost universally shared outside the DC-based Obamacare attack machine. To start with, all the primary authors of the Affordable Care Act have said on record that the tax credit is available to all qualifying citizens with no restriction upon, or threat to, states not establishing their own marketplaces, and over a hundred state legislators have said on record that they agree with this interpretation. Meanwhile, look further at the brief filed by those six state attorneys general supporting the plaintiffs. That brief merely echoes the plaintiffs' argument that four words in the law -- "established by the State" -- preclude tax credits to Americans in the 34 states where the federal government runs the marketplace. But nowhere in that brief -- nor anywhere else -- is there a shred of credible evidence that any of the elected officials who wrote the law, or any of the state officials tasked with implementing it, understood the tax credit to be so limited.

That's because state officials -- even strident opponents of the law like Governor Walker -- can't honestly say that they understood this alleged conditioning of the tax credit, blowing a hole in the "coercive intent" theory so central to the plaintiffs' narrative.

Scott Walker actually fashioned policy with the understanding that the credit was available on federally-run marketplaces. He knows that over 127,000 people already depend on the tax credit in Wisconsin, 127,000 people who could lose access to affordable health coverage. That's part of the nearly 10 million people nationwide who may stand to lose their coverage, as recent studies by The Urban Institute and RAND Corporation show. Further, in addition to the millions who would lose coverage, the loss of tax credits could also result in "significant instability and threaten[] the viability of the [individual insurance] market."

It defies belief that any governor, including Governor Walker, would allow their states and citizens to face such an outcome. Governors do have to govern, after all. Walker's comments are as clear as the law: Tax credits are available nationwide, just as Congress intended.