This issue was raised by Christine O’Donnell. Does the SCOTUS consider statements like this? I don’t know...I don’t think so though. Michael Schiavo said on Larry King that “he?/they? didn’t know what Terri wanted,” but the courts wouldn’t consider that.
O’Donnell thought that every bill should contain its constitutional argument. It isn’t fair to pass a bill saying that it isn’t a tax, and then when it’s challenged, to argue that it is a tax.