I just blundered into this interesting note, which basically points out that Supreme Court ruling that Judge Henry Hudson relied on in striking down Obamacare has long since been abandoned by the Supreme Court. Since this article was written (3 months ago) we've had one more Federal judge find it constitutional, and one more, Judge Roger Vinson, who also relied on the same overturned decision as Hudson.
Little attention was paid when two federal District Courts recently concluded that the new federal health care law was constitutional, but Monday’s ruling by a federal District Court Judge, Henry Hudson, in Commonwealth of Virginia v. Sebelius, was front page news because he held the insurance mandate at the center of the new law to be unconstitutional.
So why isn’t the penalty imposed for failure to comply with the individual mandate simply another tax?
Judge Hudson’s answer is dumbfounding: In his view, this tax is really a disguised form of regulation of commerce, citing a case (the Child Labor Tax Case) decided some 90 years ago, and one which the Supreme Court itself has said represents a line of reasoning that the Court has long since abandoned.
The article is by Edward Kleinbard, a law prof at USC. This link goes to a blog that has a longer excerpt, and a link to a PDF of the article.