In its zeal to take down the Affordable Care Act, however, the Fifth Circuit sidestepped the pesky legal niceties that normally restrain activist judges. The arrogance is breathtaking.

Which brings us to the cowardice. Having declared the mandate unconstitutional, the judges had to confront what that meant for the rest of the Affordable Care Act—the exchanges, the subsidies, the Medicaid expansion, and all the rest. The general rule is that a court’s job is to preserve Congress’s handiwork, and that any unconstitutional part of a law should be “severed,” if possible, from the rest of the law. In this case, faithful application of that rule yields a simple answer: The court should strike down the (unenforceable) mandate and leave the rest of the law alone.

The Fifth Circuit could have said that. But it didn’t. Instead, it criticized the district court for taking the blunderbuss approach of invalidating the entire Affordable Care Act. Aren’t there some parts of the sprawling law, the court mused, that don’t have much to do with the mandate and might be left intact? Maybe the part requiring calorie counts to be posted on menus at chain restaurants? Or the parts that took effect before the individual mandate came into force, like the one allowing children to stay on their parents’ insurance until they’re 26?

Figuring that out, the Fifth Circuit reasoned, would require a “careful, granular approach” to the law. But O’Connor did “not do the necessary legwork of parsing through [its] over 900 pages.” And he didn’t adequately explain his conclusion that Congress’s elimination of the individual mandate “is evidence of an understanding that no part of the ACA could survive without it.”

So the court instructed O’Connor to try again, only this time to “employ a finer-toothed comb.” Maybe at the end of the day, the court said, the entire ACA really is invalid. Or maybe just big chunks of it are. Or maybe even the vestigial mandate can be severed altogether. Who knows?

Read more: The ongoing, quiet repeal of Obamacare

I wouldn’t take that judicial shrug too seriously. O’Connor has already said that, even if he were to “parse the [law’s] provisions one by one,” his conclusion “would be the same.” We can be pretty confident about what he’ll do with the case on remand. The writing is on the wall for the Affordable Care Act.

The Fifth Circuit’s cowardice may be strategic. By refusing to say how much or little of the law has to go, the opinion avoids creating an immediate headache for Republicans going into the 2020 election. It may also reduce the odds that the Supreme Court will review the case right away: The Court doesn’t normally like to hear cases before they’re wrapped up.

Nothing about this case is normal, however. The attorney general of California, Xavier Becerra, has already announced that he’s heading to the Supreme Court. It only takes four justices to take a case, and maybe the four liberals will roll the dice. After all, Chief Justice John Roberts has turned back two much stronger challenges to the Affordable Care Act. He’s unlikely to endorse a lawsuit this silly. And waiting could be risky: Two of the liberal justices are in their 80s, and President Trump would replace them with hard-liners if given the chance.

For now, the Fifth Circuit’s decision changes nothing on the ground. But it stands as evidence, if any more were needed, that traditional legal restraints have become fragile in a time of partisan warfare.

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