As the bill was signed into law Congress and Emperor Obama made it very clear that the penalty was not a tax. But, when the opening arguments were made the Government lawyers stated that the penalty clause was legal because the Federal Government (Congress et al) could levy taxes.
The judge involve threw the BS flag and said the case would continue because the Federal Lawyers opening state was based on clearly demonstrable lies (sworn statements that contradicted Federal Law).
This case looks like it is going to be fun. Who is telling the truth - the DOJ (the penalties are taxes and are justified) or Congress (who created a whole new way of raising money not covered by the Constitution). May the Supreme Court announce its decision 1 Oct 2012.
The law itself calls it a “penalty” and the language does meet the test for it to be a tax.