I think the possibility remains somewhat remote. But the more I think about Judge Motz's analysis--and the arguments the United States was once making in these cases, way back in the summer of 2010--the more I think it is a distinct possibility that the question of the individual mandate's constitutionality might not be decided by the Supreme Court any time soon. Here is a brief sketch of my thoughts:
* Judge Motz's opinion in Liberty University is fairly persuasive. As is the amicus brief filed by former IRS Commissioners Mortimer Caplan and Sheldon Cohen in Seven-Sky v. Holder (available here). I still need to dig deeper into the weeds of the relevant precedent, but it sure seems that the Supreme Court has long held that the definition of "tax" in the AIA is much broader than that permitted by the General Welfare Clause (how else do we understand the twin Bailey cases from 1922?), and that it extends to any exaction collected by the Commissioner in the ordinary course of revenue collection under the IRC (specifically including "penalties").
* I can envision a differently-motivated collection of five justices who could come together to embrace the conclusion that the AIA strips the Court of jurisdiction. One would surmise there are four votes to uphold the mandate (Ginsburg, Breyer, Sotomayor, and Kagan). All four of these justices may well be amenable to the jurisdictional argument if it prevented the other five from invalidating the ACA. Thus, all it would take is either Kennedy or Roberts to conclude that the Court would be better off not deciding the question for the time being. And one could easily envision either or both thinking along those lines.
* Of course, were the Court to so hold, Congress might well step in to eliminate this jurisdictional bar by amending the AIA (or inserting a specific judicial review provision into the ACA). But by then, the Court would not be able to decide the case until after the 2012 election.
* Again, one could see why a majority of the Court would favor this. If Obama wins re-election, the Court would finally need to address the question. And if the Republicans win the White House and the Congress, much of the ACA might well be repealed, rendering the constitutional dispute moot. The ACA (or at least the individual mandate) would disappear without the Court having to dirty its hands. Regardless, the Court would be no worse off, and perhaps much better off from having stayed out of the fight entirely.
* In short, there are some strong institutional and ideological reasons that a majority of justices might prefer to push out their decision as far as possible, and particularly beyond the 2012 election. And the Anti-Injunction Act potentially provides a perfect vehicle for doing so--an objective, legally viable, and quite technical way of staying out of the fray. And staying out of it, at least as long as possible, might be the best antidote possible to any lingering bad feelings from Bush v. Gore, where the Court's intervention, protests to to the contrary, was hardly "unsought."
