Justice Thomas seemed to push back on the Democratic states that argue the individuals challenging the law haven't suffered the required injury to bring a lawsuit. He wanted to know if someone would have the ability to challenge mask mandates during the pandemic.

Alito also seems to think the states have standing. He said the Medicaid eligibility calculation had added to the state's Medicaid rolls.

"We want citizens to be law abiding why isn't that enough to create standing?" Justice Kagan asked.

It looks like a majority on the court thinks the two individuals and the states led by Texas have suffered an injury that gives them a right to challenge the ACA.

Justice Amy Coney Barrett asked what the court should make of the fact that the 2017 Congress dropped the penalty to $0 instead of repealing the individual mandate.

"Does that matter?" she asked.

"Was Congress wrong when it said the mandate was the key to the whole thing?” Roberts asked.

"This does seem like déjà vu all over again," Justice Alito said.

A lot of members in the 2017 Congress may well have thought eliminating the penalty or the tax would not cause any harm but others who voted for it may have wanted the entire thing to fall, Alito said.

“I don't know what we can make of what was done in 2017,” he said.

Kavanaugh says he thinks this is a "very straightforward case for severability under our precedence, meaning that we would excise the mandate and leave the rest of the act in place."

"I think it's hard for you to argue Congress intended the entire act to fall if the mandate was struck down if the same Congress that lowered the tax penalty to zero did not even try to repeal the rest of the act," Roberts said.

"Just in this act alone you are talking about almost 1,000 pages and you are letting somebody not injured by the provision that he’s challenging sort of roam around through those 1,000 pages and pick out which one he wants to attack," Roberts told the Acting U.S. Sol. General.