Well, from what I have read of the first day’s oral arguments, it was argued as a penalty. When that wouldn’t fly, Roberts allowed a secondary argument presented as a tax. You are right, we were lied to by everyone. The good side is that now, even after Pelosi and Obama and others denying it was a tax, it can now be easier to overturn. But who knows what else is hidden in the document which is equal in size to several War and Peaces.
II. IF THE COURT REACHES THE QUESTION, IT SHOULD HOLD THAT THE ACT IS SEVERABLE FROM THE MINIMUM COVERAGE PROVISION EXCEPT FOR THE GUARANTEED-ISSUE AND COMMUNITY-RATING PROVISIONS THAT TAKE EFFECT IN 2014
Sol Gen - "Oh, the Commerce Clause doesn't cover it, Your Honor?"
USSC - "No, it doesn't."
Sol Gen - "Then uphold the individual mandate as it falls under the taxing power of Congress as we presented in our brief."
USSC - "You got it."
Sol Gen - "Thank you, Your Honor."