The most extreme view was that of Justice Antonin Scalia: “My approach would be to say that if you take the heart out of this statute, the statute’s gone.” But that approach runs into the obvious difficulty that this huge bill contains provisions that have nothing to do with the mandate, such as improvements in Native American healthcare and the extension of benefits for black-lung victims. Pulling apart the obviously irrelevant bits is a huge task. Justice Stephen Breyer asked, “What do you propose that we do other than spend a year reading all this?” Even Scalia got a laugh when he asked, “You really want us to go through these 2,700 pages?”

Edwin Kneedler, arguing for the United States, pointed out that some provisions are already in effect without the mandate: 2.5 million people under 26 have gotten new coverage, for  example. Scalia speculated that this was in anticipation of the mandate, and would otherwise bankrupt the insurers, but Kneedler and Justice Sotomayor both pointed out that this is lousy economics: Those healthy people are a net benefit for insurance companies.

The complexities of severability may actually strengthen the case for the mandate, as Lyle Denniston pointed out, because they show what a huge task the Court would be taking on if it struck down the mandate. Scalia’s extreme position, if he sticks to it, may also help the mandate in another way, by convincing the other justices that he’s nuts and will say anything to strike down the ACA.

The federal spending issue turns on the expansion of Medicaid. Under the ACA, millions of the working poor – people with incomes up to 133 percent of the federal poverty level – are eligible for Medicaid. From 2014 to 2016, the federal government will pay 100 percent of the costs. Then its share decreases, to 90 percent after 2020. Because the ACA also gives states assistance with their new administrative costs, overall state spending will actually be lowered.

Twenty-six states are claiming that this conditional spending unconstitutionally coerces them, because they cannot realistically forgo the money, and because if they refuse to expand their rolls, they might lose every cent of Medicaid money. But let’s be clear: This is not about the states wanting to conserve their own money. It is about the states refusing to spend federal money, to help people that they do not want to help. (Paul Clement, the attorney for the challenging states, declared that his argument would not change if the federal government permanently paid 100 percent of the costs.)

As a legal matter, this is the craziest argument yet, which is why it was rejected by every lower court that heard it. It implies that, when states get federal money, they have a right to spend it any way they want, with no federal conditions.  It means that Medicaid itself has always been unconstitutional, along with federal unemployment benefits, highway funds, education funds and many other programs. Justice Breyer repeatedly pointed out that the provision in the Medicaid statute that is being challenged has been there since 1965.

Yet the conservative justices took it remarkably seriously. Because the federal government “has the authority under this provision to say you lose everything,” Chief Justice John Roberts declared, “it seems to be a significant intrusion on the sovereign interests of the state.” Justice Anthony Kennedy said, “There’s no realistic choice.” Justice Scalia offered the astounding claim that “if you predict … that 100 percent of the States will accept it, that sounds like coercion.” If this is right, then if I offer 10 people triple their salaries to come work for me, and I can confidently predict that they will all accept, I am coercing them.  Alito endorsed the same idea, and also thought it relevant that the money “is going to have to come out of the same taxpayers that the States have to tax to get their money.”  That would mean that the federal tax code is itself an invasion of states’ rights. How long must we keep a straight face when presented with this stuff?

There was a legitimate basis for the Court to consider many of the issues raised by the healthcare law, since they had divided the lower federal courts and the law needed clarification. But the Medicaid claim created no division: Every lower court agreed that it was without merit. (Just how meritless is explained at length in a characteristically lucid piece by Marty Lederman.) Even the most preposterous arguments are magically elevated to respectability if they are arrayed against the ACA.

The Medicaid issue also calls attention to the political decisions that were made here – the decision of all those Republican officeholders to join this litigation. Why would you work so hard to deny decent medical care to working poor people in your own state? Political warfare evidently produces collateral damage. Obama owns the healthcare bill, so anything that can gum up its works is a Republican victory – and all 26 of the state challengers, attorney generals and governors, are Republicans. But all those working poor people are not Democratic Party operatives. They are ordinary folk trying to get by. The decision to pursue this litigation displays a calculated viciousness and cruelty that we have not seen in American politics in some time. It is like getting back at my enemy by hurting his children or his pets.

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A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock.  No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation.

The No Limits argument was succinctly stated by Justice Kennedy:  “Can you create commerce in order to regulate it?” He worried that “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.”  Roberts worried that government could force you to buy a cellphone; Alito, burial services; Scalia, broccoli.

But there already is a pretty big limit on the commerce power:  United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs.  Everyone can see them. Lopez placed limits on federal power.  Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.

When Breyer raised this obvious objection, attorney Paul Clement responded: “Lopez is a limit on the affirmative exercise of people who are already in commerce. The question is, is there any other limit to people who aren’t in commerce?”  This is like saying, “Yes, I know you have legs, but you still won’t be able to move from place to place unless you buy the rickshaw!” Clement admitted that Lopez is already a limit on federal power. He’d just like the Court to create another one. And the new limit would really be much less important than the old one. He told Breyer, a few moments earlier, that the framers weren’t apprehensive about the breadth of the commerce power “because it’s a power that only operated once people were already in commerce.” But most of what we do is in commerce. We can’t realistically avoid having jobs and buying things. If the only way for me to avoid federal power is to live in the woods and eat berries, then that’s not much of a limit.

The I Am a Rock argument says that if I’m not actively engaged in interstate commerce, I’m somehow immune from federal regulation. Justice Kennedy was troubled that the mandate “requires the individual to do an affirmative act,” and “that changes the relationship of the federal government to the individual in the very fundamental way.” But Paul Simon’s lyric was intentionally ironic, because he knew that Donne was right: No man is an island. The notion that there is some corner where I can go and hide with my money, free from any obligations to anyone else, ignores the fact that the political and economic structure is what made it possible for me to have that money in the first place.

Alito thought it somehow unjust to regulate “somebody who is doing absolutely nothing about health care” by “requiring them to subsidize services that will be received by somebody else.”  Justice Ginsburg responded: “If you’re going to have insurance, that’s how insurance works.”  More important, that’s how any economy that is not pure, brutal laissez-faire works. If pre-tax income is deemed somehow sacrosanct, and no redistribution of it is legitimate, then it is even illegitimate for the government to act to prevent outright starvation, because the people paying for the food are not the ones eating it.

Some arguments partake of both. Thus, Scalia helped himself to the famous Broccoli Objection: “Everybody is in the market; therefore, you can make people buy broccoli.” This purports to be about limited federal power, but of course there’s no broccoli exception to congressional power. The presumption is that there’s some Tower of Saruman where the individual can shield himself from government compulsion.

What Solicitor General Donald Verrilli evidently could not bring himself to say – and this may be why his answers to No Limits were so tangled and hard to follow — is that there is no such safe harbor. Government already forces you to buy insurance you may not want, and thereby to subsidize others, via Social Security and Medicare. The check on the abuse of this power is a familiar one: the ballot box. George W. Bush’s failed Social Security privatization scheme tried to greatly reduce this cross-subsidization. Had he succeeded, the poorest old people, who have only Social Security to support them, would have gone from watch-your-pennies poverty to grinding, desperate poverty, just above the level of homelessness and starvation. Evidently the electorate didn’t regard it as a cruel injustice for the strong and rich to help support the weak and poor.

Once you admit that government has a general power of taxation and can spend for the general welfare – and the Constitution does expressly say both those things – then there really is no limit on its powers of redistribution. The hapless Verrilli said that he was not justifying “forced purchases of commodities for the purpose of stimulating demand,” but of course that happens whenever anything is subsidized, or whenever government purchases a lot of anything. Have you ever heard of the defense industry?

For that reason, the challenge to the mandate is weirdly formalistic. Justice Kennedy got this when he observed that Congress could have provided a single-payer healthcare system with the taxing power. “In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since … Congress can do it anyway, we give a certain amount of latitude. I’m not sure which … way the argument goes.”  Kennedy here seems to be toying inarticulately with the idea that Congress can’t do indirectly what it can do directly. But it’s hard to see why that would be so. (He also understood that the need for cross-subsidization is more powerful in the insurance industry than in any other industry. It’s a mistake to confidently count him as a vote against the mandate.)

The weird formalism of the challenge was brought out in a different way by Justice Sotomayor, who observed that the functional equivalent of the mandate would be a health tax imposed on everyone, with a credit for those who carried insurance. Clement thought there might be some limitation on that, but such credits are ubiquitous in the tax code.

A last purported limitation — a sort of I Am a Rock on steroids — came from Justice Scalia. Perhaps he was just being a devil’s advocate, but let’s be clear: That’s who he was advocating for. When Verrilli pointed out that we all pay for the uninsured because we’re obligated to care for them when they get sick, Scalia replied: “Well, don’t obligate yourself to that.” Verrilli replied that the Constitution did not “forbid Congress from taking into account this deeply embedded social norm.” A bit later, Scalia suggested that under the Constitution, “the people were left to decide whether they want to buy insurance or not.” He later suggested again that the problem could be solved by not requiring insurance companies to sell affordable insurance to people with preexisting conditions. Here the purported champion of judicial restraint proposes reading brutal, unregulated capitalism into the Constitution. Fundamental rights are violated if government acts to keep sick people alive?  The other objections to the law are merely confused. This one is evil.

Here’s how.

The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.

Yet the only way private insurers can afford to cover everyone with pre-existing health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.

This dilemma is the product of political compromise. You’ll remember the administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.

But don’t expect the Supreme Court to address this dilemma. It lies buried under an avalanche of constitutional argument.

Those who are defending the law in Court say the federal government has authority to compel Americans to buy health insurance under the Commerce Clause of the Constitution, which gives Washington the power to regulate interstate commerce. They argue our sprawling health insurance system surely extends beyond an individual state.

Those who are opposing the law say a requirement that individuals contract with private insurance companies isn’t regulation of interstate commerce. It’s coercion of individuals.

Unhappily for Obama and the Democrats, most Americans don’t seem to like the individual mandate very much anyway. Many on the political right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.

The president and the Democrats could have avoided this dilemma in the first place if they’d insisted on Medicare for all, or at least a public option.

After all, Social Security and Medicare require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don’t feel like mandatory purchases.

Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.

There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren’t directly accountable to the public. They’re accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? Some already seem to be doing this.

Even if private health insurers are organized as not-for-profits, there’s still a problem of public accountability. What’s to prevent top executives from being paid small fortunes? Apparently that’s already happening.

Moreover, compared to private insurance, Medicare is a great deal. Its administrative costs are only around 3 percent, while the administrative costs of private insurers eat up 30 to 40 percent of premiums. Medicare’s costs are even below the 5 percent to 10 percent administrative costs borne by large companies that self-insure, and under the 11 percent costs of private plans under Medicare Advantage, the current private-insurance option under Medicare.

So why not Medicare for all?

Because Republicans have mastered the art of political jujitsu. Their strategy has been to demonize government and privatize everything that might otherwise be a public program financed by tax dollars (see Paul Ryan’s plan for turning Medicare into vouchers). Then they go to court and argue that any mandatory purchase is unconstitutional because it exceeds the government’s authority.

Obama and the Democrats should do the reverse. If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

If they did this the public will be behind them — as will the Supreme Court.