Happily, very few have made this argument, because they are wrong.
The Supreme Court did not rule that the tax itself was constitutional, merely that the law was constitutional because it was imposing a tax, which Congress is empowered by the constitution to do. After the law goes into effect and someone pays what the Court has declared to be a tax, the constitutionality of the tax itself can still be challenged; probably will be.
That suit might get complicated though, by the clause in the law which says that no one who has the
Needless to say, the mandate was controversial during the ”health care reform” debate, and the idiots in Congress who wanted it did all sorts of game playing to get it included over the objections of the various idiots who did not want it. Calling it a penalty rather than a tax was one of those ploys, and a significant battle was waged over that wording, which the Supreme Court rendered moot in a matter of a few minutes.
Another way to get it included was to make it a very small penalty, tax, whatever. The thinking was that they didn’t want to punish people for not having insurance, but were willing to bow to the inevitable if the punishment wasn’t too severe. They overlooked the probability that if the penalty was sufficiently less than the cost of insurance, then anyone of intelligence would just pay the penalty and forgo insurance until they got sick, but…
Not satisfied with having whittled the penalty, which it still was at the time because the Supreme Court had not yet entered the picture, the anti-mandate idiots went one step further and managed to insert language which prevented the penalty, small as it was, from being enforced. This made everybody happy. The Congressional idiots who wanted a mandate could say they had one, and the idiots who didn’t could say, “Yeah, there's a mandate, but so what because it’s meaningless.”
Which has to make me wonder what the fuss is all about.