In an opinion blending arrogance and cowardice in equal measure, an appeals court ruled yesterday that the Affordable Care Act contains a constitutional flaw—and that most or all of the law may have to be scrapped. But the court was coy about just how much of the law has to go, and punted that decision back to the same judge who, last December, declared the entire law invalid.
What happens next is uncertain. The Supreme Court might choose to hear the case, Texas v. United States, right away, setting up a constitutional showdown that could become the centerpiece of the 2020 presidential election. Or the justices could wait until the lower court rules, leaving the fate of Obamacare in limbo for years.
Neither outcome is good. And it’s all completely unnecessary. The case is a partisan stunt that’s been roundly condemned by lawyers on both sides of the aisle. It should’ve been laughed out of contention long ago. The opinion from the U.S. Court of Appeals for the Fifth Circuit is an embarrassment, both to the Republican-appointed judges who put their names to it and to the federal judiciary as a whole. (The third judge on the panel, appointed by Jimmy Carter, dissented vehemently.)