Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.State of Florida v. DHHS (.pdf; 65 pgs.)
The court utterly rejected the federal government's argument* that the individual mandate is a tax in furtherance of the general welfare rather than an exercise of Congress's interstate commerce power.
"If [the individual mandate] is to be sustained," the district court declared today, "it must be sustained as a penalty imposed in aid of an enumerated power, to wit, the Commerce Clause power."
That won't be easy, given that the law seeks to regulate inactivity.
Somewhere, J.B. Van Hollen is gloating.
* Which the court essentially accused the feds of disingenuously cobbling together after the fact, as this here blog had predicted.
eta: "Based on the reporting we've done, it looks like the Commerce Clause argument is the best shot the [plaintiff] attorneys general have — but it was still considered a long shot." — David Kurtz, J.D.
It was? By whom? Not by anybody I know.