The U.S. Court of Appeals for the 5th Circuit had an opportunity to rebuke one of the most breathtaking instances of judicial activism in recent memory. On Wednesday, it whiffed.

Since the collapse of repeal-and-replace, one could imagine that Republicans’ anti-Obamacare fever had finally broken. But the Trump administration and its allies are pressing one last, desperate attempt to unravel the law, arguing that in making Obamacare less coercive, Congress rendered it unconstitutional.

It is a puzzling argument rooted in the Supreme Court’s 2012 decision upholding the law’s “individual mandate” – a requirement that all Americans carry health coverage or pay a specific amount of money to the treasury. The high court ruled that this arrangement was lawful only in that it resembled a tax, which Congress is fully empowered to levy, rather than a mandate to purchase a good, which Congress is not allowed to establish. But in 2017, Congress set to zero the amount anyone declining to buy insurance would have to pay the government. The law’s challengers now argue that the provision no longer resembles a tax, as it raises no revenue, so it is unconstitutional. They further argue that, absent the mandate, none of the law can stand – not even reforms that have little to do with the mandate.

Astonishingly, District Judge Reed O’Connor agreed, last December declaring the whole law to be void. He reasoned that Congress would not have intended for the law to stand absent the mandate – even though the law’s Medicaid expansion, Medicare reforms and health care improvements for Native Americans depend not at all on the mandate, and even though the law’s marketplaces have functioned remarkably well without it.

Legal experts from across the spectrum denounced O’Connor’s ruling. The 5th Circuit should have joined the chorus. Instead, the appeals court agreed with much of the decision, striking the individual mandate. Its only pushback was to instruct O’Connor to re-evaluate whether the rest of the law must go, too, suggesting that only parts of it could be struck.

From here, O’Connor must redo his analysis, per the 5th Circuit’s order. But the 5th Circuit’s decision will also certainly be appealed to the Supreme Court.

It is unclear whether this is even a case courts should hear, given that a zeroed-out tax imposes no costs on the challengers. It is also possible that Congress may establish a tax that it declines to collect, contrary to the challengers’ assertion. But even if the justices concur with the 5th Circuit on these questions, they have no cause to strike any of the rest of the law along with the mandate.

When Congress in 2017 zeroed out the individual-mandate penalty but left the rest of the law intact, lawmakers expressed their intention to defang only one specific provision; there were not enough votes to undo any more – even those provisions previously seen as related to the mandate. It defies all logic to suggest that lawmakers did not intend for the law to stand without the mandate – after they allowed the law to stand without the mandate. Though the law would function better with the mandate in place, it has not unraveled after the mandate’s effective repeal.

The high court should put an end to this disheartening episode in judicial brazenness.

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