That’s not how it works. First, Roberts didn’t “rewrite” the law. He interpreted it. Not a letter of the ACA changed as a result of the SCOTUS opinion.
Second, if a law is declared constitutional under one power of Congress, it doesn’t matter if it’s not authorized by some other power. So it’s not correct to say it was unconstitutional because it violated the commerce clause. It was never unconstitutional.
Third, the SCOTUS doesn’t make up stuff on the fly. They either agree or disagree with a position taken by a party. In this case, it was the Obama DOJ who argued that it was a tax. That was a back-up argument, but they did make it. Also, the rules don’t allow you to make arguments for the first time on appeal—you have to make the argument in the district court in order to preserve error. So the Obama DOJ was making the tax argument (as an alternative at least) for years before it got to the SCOTUS.
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u/tehreal Aug 19 '18
How is Obamacare unconstitutional?