Another interesting comment from Justice Ginsburg:
“This is a suit that is challenging the must-buy provision, and the argument is made that, if, indeed, “must-buy” is constitutional, than these complainants will not resist the penalty. So what they’re seeking is a determination that that “must-buy” requirement, stated separately from penalty, that “must-buy” is unconstitutional, and, if that’s so, that’s the end of the case; if it’s not so, they are not resisting the penalty.”
Another laugh from the gallery when Mr. Long, who is arguing that the Anti-Injunction Act applies, says:
“Well, I would not argue that this statute is a perfect model of clarity,”
Sounds like she’s suggesting that the constitutionality of the individual mandate pre-empts arguments on the jurisdiction of the tax/penalty provision... and that makes sense: If the mandate is bad, then the penalty clearly cannot stand, and the anti-injunction act applicability is a moot point.