First, I will note that the portion of the opinion which ruled the mandate unconstitutional may prove to be helpful in future cases. So, yay.
On the other hand, I don’t see why Justice Roberts could not have taken the same position without rewriting the law. He could have said that the Congress lacks the power, under the Commerce and Necessary & Proper clauses; that Congress does have the power to enact health care reform, funding it with taxes; that if this was a Congress’s intent, then Congress needs to enact new legislation with the correct language.
Instead, the Chief Justice chose to rewrite the language himself, saying that the “penalty” was in fact a tax, no matter what Congress chose to label it. (I am reminded of the story told by Abraham Lincoln: if you call a dog’s tail a leg, how many legs does a dog have? The answer is 4, because it doesn’t matter what you call the tail, it is not a leg.)
Here is the problem I see with Justice Roberts’ approach: Congress very specifically rejected the word “tax” in writing the law. Nothing prevented them from labeling this as a tax, other than the negative reaction they anticipated from the voters. Congress chose the term, Congress should be the body to change the label.
By ignoring the carefully selected, plain language of the act, Justice Roberts displayed contempt of Congress.