Obamacare, or the The Affordable Care Act, is currently under review by the Supreme Court. By all accounts it had a very hard day.

Jeffrey Toobin, a lawyer and legal analyst for the New Yorker had this to say: “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.”

The conversation between Chief Justice Roberts and Solicitor General was a very telling part of the days hearing:

CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

GENERAL VERRILLI: No, Mr. Chief Justice. think that’s different. It’s — We — I don’t think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won’t be able to control what they need when they enter but when they —

CHIEF JUSTICE ROBERTS: It seems to me that’s the same as in my hypothetical. You don’t know when you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do, and the government provides it.

The main thing being contended is the individual mandate to buy insurance or face a “penalty” or tax. The main argument for the law by the Solicitor General is that congress has the power to mandate interstate commerce, and that healthcare falls under that umbrella. The main argument against is that if congress can mandate that you buy health insurance where does it stop? Can they make you buy a cell phone too? As Chief Justice Roberts put above.

Justice Alito had the same argument about burial insurance, because if someone can’t afford it the state pays for it.

JUSTICE ALITO: Do you think there is a, a market for burial services?

GENERAL VERRILLI: For burial services?

JUSTICE ALITO: Yes.

GENERAL VERRILLI: Yes, Justice Alito, I think there is.

JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else.” Isn’t that a very artificial way of talking about what somebody is doing?

GENERAL VERRILLI: No, that -­

JUSTICE ALITO: And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?

GENERAL VERRILLI: It’s, I think it’s completely different. The — and the reason is that the, the burial example is not — the difference is here we are regulating the method by which you are paying for something else — health care — and the insurance requirement — I think the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community rating forms, to end — to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and -­

JUSTICE ALITO: I don’t see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?

GENERAL VERRILLI: Well, one big difference, one big difference, Justice Alito, is the — you don’t have the cost shifting to other market participants. Here -­

JUSTICE ALITO: Sure you do, because if you don’t have money then the State is going to pay for it. Or some -­

GENERAL VERRILLI: That’s different.
JUSTICE ALITO: Or a family member is going to pay.

GENERAL VERRILLI: That’s a difference and it’s a significant difference. In this situation one of the economic effects Congress is addressing is that the — there — the many billions of dollars of uncompensated costs are transferred directly to other market participants. It’s transferred directly to other market participants because health care providers charge higher rates in order to cover the cost of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health insurance costs.

JUSTICE ALITO: But isn’t that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in — in 2016. Respondents — the economists have supported — the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn’t — if those figures are right, isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

GENERAL VERRILLI: No, I think that — I do think that’s what the Respondents argue. It’s just not right. I think it — it really gets to a fundamental problem with their argument.

You can see the entire transcript here.

The hearing ends tomorrow and there is not expected to be a ruling until this summer. So this issue will have an effect on the election!