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Washington (CNN)The Obama administration says it's doing nothing to stave off the potential disaster that would ensue if the Supreme Court upends Obamacare and millions of Americans face losing affordable health insurance.
What might look like administration negligence is actually a carefully tuned strategy to raise the stakes at the Supreme Court, where on Wednesday justices will hear arguments on a central Obamacare provision that allows federal subsidies for insurance.
"If they rule against us, we'll have to take a look at what our options are. But I'm not going to anticipate that. I'm not going to anticipate bad law," Obama told Reuters this week, signaling his aides weren't taking any action to prevent the potential gutting of the signature legislative achievement of his presidency.
Sylvia Mathews Burwell, the Health and Human Services secretary, told lawmakers in a letter last week that the administration wasn't making any contingency plans should the plaintiffs prevail at the high court.
"[We] know of no administrative actions that could, and therefore we have no plans that would, undo the massive damage to our health care system that would be caused by an adverse decision," Burwell wrote.
The White House hopes the various players who could prevent a total meltdown of the law — Supreme Court justices, lawmakers, and individual states — are listening.
The Kaiser Family Foundation estimates 13.4 million Americans could lose their subsidies if the court rules in favor of King v. Burwell's plaintiffs. Health experts say that would signal the demise of Obamacare, which relies on enough healthy Americans enrolling in plans made affordable by subsidies.
The question before the Supreme Court is whether those subsidies are legal for residents in the 34 states that haven't set up insurance exchanges of their own, and instead utilize the federal marketplace. Plaintiffs in the case argue the Affordable Care Act — which permits subsidies in exchanges "established by the State" — doesn't allow for subsidies when enrolled through the federal system.
In Congress, it appears unlikely a GOP-majority would allow a legislative fix to a law they've railed against since its inception.
Republicans say they do, however, have a plan to provide affordable insurance to Americans whose subsidies would disappear.
"Millions of Americans may lose these subsidies if the court finds that the administration acted illegally. If that occurs, Republicans have a plan to protect Americans harmed by the administration's actions," wrote Sen. Orrin Hatch, the Republican chairman of the Senate Finance Committee, in the Washington Post this week. He wrote his plan would allow people to keep their current insurance for a "transitional period" if the court ruling causes costs to skyrocket.
Around the country, states also appear to be hearing the administration's message that a negative ruling has no administrative recourse.
In nine of the 34 states that use the federal health marketplaces, legislation is pending to create state exchanges that would allow enrollees to benefit from subsidies. But those measures, which legislators have scrambled to assemble with the court decision looming, aren't likely to be in place by the time the court rules in June.
Republicans dismiss the White House's strategy as another sign the president's health law is unworkable.
"By admitting they have no contingency plan to assist the millions that may lose subsidies, the administration confirms how the misguided law is unworkable for the American people," Hatch said in a written statement last week.
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