But there is a danger here too: that courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.
Of equal concern is the court’s analysis of the constitutionality of the individual mandate. While the court upheld the mandate, it did so by rejecting the federal government’s claim that it was regulating commerce. There is no judicial precedent or language in the Constitution that compelled that result; instead, the majority reasoned by constitutional inference.
The court employed language that could be read to suggest that whenever statutes are novel, they are unconstitutional. This atextual reading of the Constitution, odd for “strict constructionists,” may later blossom into a radical constitutional theory that could upend decades, if not centuries, of precedent, going all the way back to Chief Justice John Marshall’s famous opinion in the 1819 case McCulloch v. Maryland, which spoke of a flexible, adaptable Constitution.