[WS:] I am not a lawyer, but I sincerely doubt this argument will stand in the high court. In fact, the opponents of the Obamacare are trying something similar arguing that they brought a lawsuit out of 'fear" of future penalties for not having insurance.
I think a more likely scenario is that it is Obama administration's way of trying to derail, by a proxy, a piece of legislation which they could openly oppose for political reasons.
-- Wojtek
"An anarchist is a neoliberal without money."