As The New York Times suggested last week, the fate of President Obama's Affordable Care Act in general, and its mandate that Americans obtain health insurance in particular, may hinge on Justice Anthony Kennedy's notion of "liberty." While Solicitor General Donald Verilli posited "a profound connection" between health care and liberty, his opponent Paul Clement argued, "that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."

Of course, that very conception of liberty has been the law of the land for decades. Today, tens of millions of Americans must purchase health insurance and a pension plan for their golden years. And as it turns out, the Medicare and Social Security mandates for individuals and employers dwarf anything required by the dreaded Obamacare.

As we learned during the recent debate over the extension of the payroll tax cut, 160 million Americans pay taxes to fund the Medicare and Social Security trusts for today and tomorrow's retirees. Since 1935, workers and their employers have each paid into the Social Security trust fund, a figure which next year will return to its 6.2 percent rate on the first $106,000 of income. In addition, employer and employee alike are on the hook for another 1.45 percent for Medicare, the insurance program for the elderly established in 1965.

In comparison, the Affordable Care Act's individual mandate impacts just a small fraction of Americans. For starters, over 80 percent already have health insurance, compared to roughly 17 percent who do not. The Economic Policy Institute estimates that 59 percent of those under age 65 receive employer-sponsored insurance, while another 22 percent are covered by public programs including Medicaid and SCHIP. Of the 50 million people who are currently uninsured, about 20 million (including undocumented immigrants and those with religious objections or claiming economic hardship), are not covered or are otherwise exempt from the health insurance mandate. As a recent Urban Institute analysis concluded:

What may be surprising, however, is that if the ACA were in effect today, 94 percent of the total population (93 percent of the nonelderly population) or 250.3 million people out of 268.8 million nonelderly people would not face a requirement to newly purchase insurance or pay a fine.

As Ryan Grim noted, that's because "98 percent of Americans would either be exempt from the mandate — because of employer coverage, public health insurance or low income — or given subsidies to comply." The Urban Institute estimated that 8.1 million Americans would have their insurance paid for by the expansion of Medicaid to 133 percent of the federal poverty level. Another 10.9 million people would receive subsidies to buy private insurance in the new state exchanges, while only 7.3 million (2 percent of the total U.S. population) would be required to purchase a health plan using their own resources alone. As for those Americans choosing to instead to pay the penalty for failing to obtain insurance at all, the CBO estimated that number at 4 million. (That forecast is almost double the rate in Massachusetts, where only 48,000 in a state of 6.6 million people opted to pay the penalty rather than acquire health insurance under Mitt Romney's version of the individual mandate.)

But if far more Americans pay the Social Security and Medicare mandates, the number of direct beneficiaries of "Obamacare" is much lower.

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This afternoon's session centered around the Medicaid expansion and whether it was coercive for the Federal government to fund 90 percent of states' costs with the proviso that if they did not implement the expansion, they could lose all of their Medicaid funding.

The idea behind this was to revamp how Medicaid works to deliver health care to the very poor in our states so that they wouldn't simply have triage services, but preventive and access to regular health care like everyone else. To make that happen, Congress offered the large payment in exchange for reshaping Medicaid across the states.

This particular piece of the Affordable Care Act strikes right at the argument over government overreach and federalism. The federal government could have simply expanded Medicare to cover the very poor and administered everything on a federal level, but instead chose to leave the actual administration to the states while funding it to the tune of 90 percent.

To the right wing, this is called coercion. To the left, it's called a gift. There isn't any middle ground, as was evident by the sharp division along ideological lines in today's argument. I don't think that the eloquence of Solicitor General Verrilli's closing argument will change any minds on either side. As much as I don't want to handicap the outcome, this one felt very much like a 5-4 decision, with Medicaid and the poor being the losers.

Because the closing arguments more or less sum up the principles being hashed out, I've clipped them here. SG Verrilli's is first; Attorney Paul Clement's is second (and far shorter).

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It comes down to this: Is liberty really freedom from the shackles of exclusion; that is, being denied access to health care because one is poor or sick? Or is liberty being freed from the obligation to participate; that is, accept the individual mandate or penalty and on the state level, the constraints under which the federal government will fund 90 percent of funding for the poor? Those are the choices. Both sides cry liberty, but the court will define the one we all will have to live with.

I am feeling pessimistic today. Even though I understand all of the admonitions that oral arguments are generally not determinative of a final outcome, and even though there were small glimmers of possibility that at least two justices might understand what it means to strike the Affordable Care Act in its entirety, it's also true that I paid a visit to the comment sections of my previous posts, where I saw people hoping they would strike it in the hopes of getting something better.

This triggered my pessimism, because there is no way that killing the Affordable Care Act will lead to something better. It will mean more people die, more people do not get treatment for chronic illness, that more people go to emergency rooms, and finally, that the entire health care system is at risk of blowing up altogether. It will mean that the conservatives forever control our health care system and access to it.

Conservatives' vision for the future is one where we are all enslaved in one way or another. We're either enslaved to our corporate masters so we can have health insurance, even those who might innovate or create if they had the freedom to do it and still be able to go to the doctor, or we're enslaved to our bodies, which might fail us for no reason other than a genetic defect, or environmental reasons, or a virus, or just fate. They see liberty as something to be controlled by the privileged few, by the wise men (and yes, I do mean men) in their counting-houses who dole out "opportunities" to make them and their friends richer.

On the other side, liberals' vision for the future is one of community, where we attend to those basic needs of our society collectively. Education, health care, roads, public safety. These are all areas where we believe government can be most effective, freeing individuals to pursue whatever path to prosperity or satisfaction they wish.

One is cynical; the other hopeful. And right now, it would appear the cynics are winning the message war.

Transcript of the closing arguments after the jump:

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