The 12 Questions That Could Kill the Individual Mandate

A review of the justices' creative, and potentially crucial, questions from today's hearing

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Today was the most important day in the history of the individual mandate. And it might be the day the individual mandate died, based on the conservative justices' creative and painstaking assault on the law. "This was a train wreck for the Obama administration," Jeffrey Toobin told CNN. "This law looks like it's going to be struck down."

Let's go to the tape.

Here is the transcript of the Supreme Court arguments this morning. It is a remarkable, entertaining, triumphant (for some), and aggravating (for others) document. The four conservative justices -- Thomas doesn't say a word -- launch a cannonade of metaphors and arguments by analogy that Attorney General Verrilli often fails to deflect or combat. Over the course of the hour, health insurance was compared to cell phones, broccoli, exercise, and cars. Below are 12 of the most withering questions, in chronological order, with some context from me in italics.

Justice Kennedy: A fundamental question: Can you create economic activity to regulate it?

"Can you create commerce in order to regulate it?"

Chief Justice Roberts: Everybody needs access to emergency assistance. If you can make people buy health insurance, can you make people buy cell phones for safety?

"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?"

Justice Alito: Everybody dies. If you can make people buy health insurance, can you make people buy burial insurance?

"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? 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?"

Justice Scalia: Everybody needs to eat. If you can make people buy health insurance, can you make people buy broccoli?

"Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli."

Chief Justice RobertsSeriously, why isn't a health insurance mandate like a broccoli or car mandate?

"You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren't purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I don't understand that distinction."

Justice Scalia: If people don't buy cars, Scalia says, the price that those who do buy cars pay will have to be higher. Hmm. Higher demand usually raises prices. The mandate is about diversifying insurance pools to lower risk.

"You were saying other people are going to have to pay more for insurance because you're not buying it ... If people don't buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car."

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Derek Thompson is a senior editor at The Atlantic, where he writes about economics, labor markets, and the entertainment business.

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