With the Supreme Court oral arguments on the Affordable Care Act now over, my finally impression is that the government’s case for the individual mandate was deeply troubling. It just wasn’t straight forward. The government could have argued that the mandate and associated penalty functioned as a tax and was permissible under Congress’ taxing power, but for unclear reasons it chose not to make this unambiguous argument.

The individual mandate will actually have almost no impact on what a majority of people using the new exchanges would pay for health insurance. That’s because for most people using the new exchanges, their cost of insurance will be determined by the affordable tax credits. According to the CBO’s projections, roughly 60 percent of people getting insurance in the non-group market will qualify for affordability tax credits.

If the arguments are any guide, then, the choice would be, in the event of the mandate being found unconstitutional, between tossing the regulations with the mandate, or tossing the whole law. The mandate won’t come out alone, if form holds and everyone to the right of Kennedy agrees.

The Obama administration seems to believe that the group health insurance market currently “works.” That is why the Affordable Care Act doesn’t change much about the group market. This creates a logical problem for the administration when it tries to argue that the individual mandate for the individual market can’t be severed from the ACA’s main new consumer protections, such as guaranteed issue and community ratings.

On the third and final day of the Supreme Court hearings on Obamacare, the Justices will hear arguments on two separate issues. One concerns severability. If one portion of the law is found unconstitutional, such as the mandate, does that require the Court to strike down related provisions, or even the entire law?

I think nothing better illustrates how poorly the oral arguments went for the Obama administration today than this exchange where Solicitor General Donald Verrilli Jr. tried to claim the individual mandate to buy insurance is not actually a government “purchase mandate,” apparently trying to avoid the appearance of overreaching on the scope of the Commerce clause. The result was a muddle.

The general take I’m hearing from people inside the courtroom today is that Solicitor General Donald Verrilli blew it during arguments on the health care law’s individual mandate. In the second hour, however, Kennedy and Roberts, at least, questioned the argument from the plaintiffs, representing the 26 states, almost as harshly. This may come down to how Justice Kennedy views the scope of federal power.

The Urban Institute is out with a new policy brief claiming the individual mandate will only affect 2-5% of the population, and it has managed to get some media traction. The problem is that the whole brief has a huge logical problem by looking at only a tiny window of time.

Today’s Supreme Court arguments really get to the crux of the matter. They concern the constitutionality of the individual mandate, the part of the law that forces Americans in the individual marketplace with the ability to pay (there is a hardship exemption) to either purchase health insurance or pay a penalty. We summarize the main arguments here.

One of the most important questions the Justices will likely bring up tomorrow in the deliberation about the individual mandate will be: Is health care — or heath insurance — actually unique? There is an argument that the constitutionality of the insurance mandate under the commerce clause hinges on some unique aspects of health care or health insurance. It it unique, and does this link actually matter?