Three possible surprise rulings on the Affordable Care Act

Supporters of the Affordable Care Act would regard a Supreme Court ruling that the individual mandate is unconstitutional as a chaos-inducing disaster; a strike-down of the entire law as a catastrophe; and an unconditional upholding as an unlikely consummation devoutly to be wished.  There are, however, more ambiguous possibilities -- each unlikely in itself, but taken together, representing a reasonable chance of not-entirely-awful surprise.  Here are three.

1. Kick the can.  The first question the justices considered in oral argument is whether the constitutionality of the mandate can be challenged before anyone is subject to the mandate, which won't happen until the exchanges open in 2014. The case that they cannot rests on the Anti-Injunction Act, which bars challenges to a tax until the tax has been assessed. Both the government and the plaintiffs argued that the Anti-Injunction Act does not apply in this case; the Court appointed an outside attorney (Richard Long) to argue that it does. The arguments were arcane -- a plain-English summary is available on Scotusblog --  and most observers did not think that the justices seemed to seriously entertain the notion that the AIA applies in this case.

But a punt remains a legally viable option if five justices can't coalesce in a coherent decision to strike all or part of the law. What if, say, two justices want to strike the whole thing, and three want to strike the mandate alone, or in some way reshape it (see below), and they can't agree on instructions to give Congress if they leave a law on the books while destroying or reshaping a part that affects the whole? Mightn't they decide to defer decision until the mandate (and the exchanges) are actually operating?