Legislators didn’t want to call it a tax for political reasons...
If I recall correctly, legislators specifically stated it was not a tax when the bill was being debated. If that's the case, can't a lawyer bring this up when arguing the case in court? In other words, if DOJ starts describing the mandatory purchase of health insurance, or the penalty for not purchasing, as a tax, couldn't Cuccinelli just introduce as evidence the adamant statements of legislators that it "wasn't a tax" and destroy the DOJ's argument? After all, the legislatures' intent must be understood when considering a bill in court, right?
I would think so. Of course, I'm an "original intent" kind of guy. Since a lot of folks consider all legislation to be "living", I think there is a concern that the goverment may decide "When we debated the bill, and passed the bill, it was not a tax. However, at this point in time, we deem it expedient to declare that it is a tax. Let it be so."
I will be amazed if the Supreme Court doesn't trike this thing down, but I've been surprised before. ;)