Part of the rationale for not including the provision in the Republican repeal strategy is to avoid giving the Supreme Court justices a reason not to strike it down.
Politico: Health Care Reform: House GOP Waits For Supreme Court
House Republicans have tried to repeal various pieces of President Barack Obama's health reform law, but they haven't touched the least popular piece: the individual mandate. One reason for that: They don't want to give the Supreme Court a reason not to strike it down (Haberkorn, 1/26).
Meanwhile, there are new calls for Justice Elena Kagan to recuse herself from the case -
Fox News: Debate Heats Up Over Whether Kagan Should Participate In Supreme Court’s Health Care Law Ruling
With just weeks until the U.S. Supreme Court considers the constitutionality of President Obama's health care law, there are new calls for Justice Elena Kagan to recuse herself from the case. Her critics point to a 2010 case regarding a San Francisco health measure, in which then-Solicitor General Kagan's office filed an amicus brief touting the newly passed health care law. In May 2010, after Kagan had been nominated to the nation's highest court, Principal Deputy Solicitor General Neal Katyal sent her a memo outlining the cases in which she had "substantially participated." Kaytal specifically referenced the Golden Gate case, noting that it had been "discussed with Elena several times" (Bream, 1/26).