I agree it is a tax and I agree it is unconstitutional and I agree that Obama and the Democrats lied when they said it wasn’t a tax.
But Romney cannot easily argue that as a tax it is unconstitutional. I agree that it is. But Roberts has ruled otherwise. In the face of that, it is probably better to make Obama call it a tax to claim constitutionality for it, or else, if a penalty, to say it is unconstitutional. Romney can ask him in debate “Which is it? Is it a tax, or is it unconstitutional?” And if Obama points to Massachussets, Romney will bring up the 10th Amendment to the professor of constitutional law. I understand where you are coming from, but there are many ways to play the game of chess.