metta8 saidJudge in Va. strikes down federal health care law
So does this mean that it has to be called a tax for it to work?
Already being discussed here:Key Part of Obamacare Found Unconstitutional
To answer your question, yes, the administration and Democrats in Congress are trying to have it both ways.
The first half of the administration's case is that due to the Commerce clause, they have the authority to compel all citizens to purchase a good or service from a private entity (clearly they do not).
The other half of the administration's schizo defense is that the mandate isn't commerce, but simply a "tax" and that Congress has the authority to tax (which it does).
Sounds like a formula for a losing case.