Stuart Gerson, a former acting U.S. attorney general now with Epstein Becker & Green in Washington, told BNA there is a possibility the tax bar could come up as a bargaining chip during deliberations among the justices.
If there is trouble reaching a majority on the individual mandate issue, or if the only way for the court's more liberal wing to salvage it is to delay the vote, the justices could opt to apply the AIA and put the case off until at least 2015, Gerson said.
He emphasized, though, that that is just a "possibility."
Gerson agreed that "it's hard to tell how it will come out." Those predicting the mandate's demise may be "overestimating" their ability to prognosticate, he said. Still, Gerson thinks the individual mandate "is in deep trouble."
Gerson, who participated in several moot court events on the case, said the government "made a terrible showing" when it came to defining the Commerce Clause's limiting principles. The justices on both wings of the court were "begging" Verrilli to come up with something, he said.