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Today is a red-letter day. Dare I say, it is Unprecedented. Julie Bataille, lead Obamacare spokesperson, has stated emphatically, on the record, that the government lacks the authority to delay the enrollment deadline to sign up for Obamacare.

On a conference call with reporters on Tuesday, Centers for Medicare and Medicaid Services spokeswoman Julie Bataille said even if officials wanted to, her agency didn’t have the authority to delay the enrollment deadline.

“We have no plans to extend the open enrollment period,” Bataille said. “In fact, we don’t actually have the statutory authority to extend the open enrollment period in 2014.”

Could it be? Has the separation of powers finally caught up with HHS? Can’t they tweet, or blog or something, about how uncertainty in the marketplace necessitates a longer period to enroll, and a need to delay the mandate? They’re just not being creative enough.

Secretary Sebelius also said, flatly, that there are no plans to delay the mandate.

Given problems caused by ObamaCare’s faulty website last year, Brady asked Sebelius directly if delays to the individual mandate or enrollment deadline were next.

“No sir,” Sebelius responded on both counts. …

“I haven’t seen their statements but there is no delay beyond March 31,” she said.

But this is only half-true. The mandate won’t be delayed, but just about anyone can request a delay. As I reported yesterday, HHS has extended a hardship waiver to Obamacare’s mandate for two more years. So effectively, anyone who can’t afford a new policy, or had their old policy cancelled, can seek an exemption (at Sebelius’s discretion) to pay the penalty.

Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.

In a reply to Life Magazine, Chief Justice Rehnquist declined the request. He wrote:

“I have taken up your proposal with my colleagues, and we are all of the view that it would not be appropriate for us to undertake the sort of writing which you propose. We are constantly engaged in deciding what the various provisions of the Bill of Rights mean in case which come before us, and we think that our interpretations of these amendments should be confined to that sort of effort.”

I tend to agree with Chief Justice Rehnquist here–and presumably with his colleagues who signed off on this message. Though, Chief Justice Rehnquist, Justice Stevens, Justice O’Connor, Justice Scalia, and several other of the Justices conferred may not have practiced what they preached, as they all have made extrajudicial statements, in speeches, books, and other media appearances.

Since he has stepped down from active service on the Supreme Court (he did not retire as an Article III judge), Justice Stevens has given frequent speeches about the Constitution. Most of his talks focus on why his dissents were correct, or alternatively, criticize majority opinions he disagrees with. In fact, he is publishing a new book, that offers six new Amendments to the Constitution. While I have been quite critical of Justice Stevens’s recent opining on the Constitution outside the Court, Stevens has continued a lengthy tradition of the Justices of the Supreme Court doing so.

In future works, I will break down some of these writings, and attempt to demarcate the different types of appropriate, and inappropriate extrajudicial writings. It is not enough to say, well Justice Story, or Justice Scalia did it, so it must be fine. (And for sure, the answer can’t be, “But Judge Posner does it!”). In particular, the role of the “Shadow Justice”–that is the role of a semi-retired Justice who attacks his colleagues, when they cannot respond, has been understudied.

As an aside, beyond the ethical issues, Davies points out the intractable logistical issues with the request from Life Magazine–which Justice would get which Amendment! There are 9 Justices and 10 Amendments! Plus, who gets dibs on the First Amendment, and who gets stuck with the Third Amendment? I’m not sure how Life Magazine expected the Justices to figure that one out.

The lecture notes are here, and the live chat is here.

Courtesy of the Dukeminier & Krier web site, here is a map of the property at issue in Delfino v. Vealencis.

Here was the map for the proposed subdivision:

And here is the Vealencis family.

vealencis

The lecture notes are here. The live chat is here.

Equal Protection and Desegregation

• Cumming v. Board of Education (1346-1349).
• Giles v. Harris (1349-1352).
• Berea College v. Kentucky (1352-1359).
• Desegregation Cases (1359-1360).
• Board v. Board of Education (I) (1360-1363).
• Bolling v. Sharpe (1363-1364).
• Brown v. Board of Education (II) (1364-1365).
• Notes (1365-1370).

Brown v. Board of Education This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.

Here is Brown’s family.

(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. ) Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.

Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper. Here is an other photograph of all of the students.

This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.

Here are photographs from inside Monroe Elementary.

The white-Sumner Elementary School was much closer to where Linda lived.

The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated. Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.

Here is the oral argument sheet from decision day. Here is Chief Justice Warren’s draft of the final opinion. Here is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:

This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”

This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954.   Here is the entire NAACP Legal Defense Fund legal team:

Another iconic photograph of Linda Brown sitting on the Courthouse steps, with a newspaper blaring the headline,”High Court bans Segregation.”

This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”

Bolling v. Sharpe This is Spottswood Thomas Bolling, Jr., twelve years old. He was not allowed to attend a new junior high school in Washington, D.C. reserved for for whites.

Aftermath of Brown

Palmer v. Thompson

Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.

In 1957, President Eisenhower mobilized the 101st Airborne to force Governor Orval Faubus from blocking entry to Little Rock Central High School. The “Little Rock 9” were escorted to school by military protection. As a result of efforts to oppose integration, the Supreme Court held in Cooper v. Aaron that the decisions of the Supreme law of the land, and that the states were required to comply.

In 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama. President Kennedy ordered the General of the Alabama National Guard to confront him.

The WSJ reports that the Administration has quietly buried in a PDF (rule by blog post you know) a rule that extends for two years a waiver from the individual mandate for those claiming a hardship exemption (basically health insurance is too expensive because of Obamacare). Is this right?’

ObamaCare’s implementers continue to roam the battlefield and shoot their own wounded, and the latest casualty is the core of the Affordable Care Act—the individual mandate. To wit, last week the Administration quietly excused millions of people from the requirement to purchase health insurance or else pay a tax penalty.

This latest political reconstruction has received zero media notice, and the Health and Human Services Department didn’t think the details were worth discussing in a conference call, press materials or fact sheet. Instead, the mandate suspension was buried in an unrelated rule that was meant to preserve some health plans that don’t comply with ObamaCare benefit and redistribution mandates. Our sources only noticed the change this week.

That seven-page technical bulletin includes a paragraph and footnote that casually mention that a rule in a separate December 2013 bulletin would be extended for two more years, until 2016. Lo and behold, it turns out this second rule, which was supposed to last for only a year, allows Americans whose coverage was cancelled to opt out of the mandate altogether.

In 2013, HHS decided that ObamaCare’s wave of policy terminations qualified as a “hardship” that entitled people to a special type of coverage designed for people under age 30 or a mandate exemption. HHS originally defined and reserved hardship exemptions for the truly down and out such as battered women, the evicted and bankrupts.

But amid the post-rollout political backlash, last week the agency created a new category: Now all you need to do is fill out a form attesting that your plan was cancelled and that you “believe that the plan options available in the [ObamaCare] Marketplace in your area are more expensive than your cancelled health insurance policy” or “you consider other available policies unaffordable.”

This lax standard—no formula or hard test beyond a person’s belief—at least ostensibly requires proof such as an insurer termination notice. But people can also qualify for hardships for the unspecified nonreason that “you experienced another hardship in obtaining health insurance,” which only requires “documentation if possible.” And yet another waiver is available to those who say they are merely unable to afford coverage, regardless of their prior insurance. In a word, these shifting legal benchmarks offer an exemption to everyone who conceivably wants one.

I was waiting for the individual mandate to be delayed. And this looks like it is it.

There is one silver lining that I have mentioned several times during recent book talks. The fewer people who are required to buy Obamacare, and who will not be subject to the mandate, the fewer people who will object if this is repealed. No president will ever be able to enforce it, making a repeal more likely. The President is sabotaging Obamacare in ways that Ted Cruz couldn’t even dream of (that got a good laugh line in a recent talk).

The WSJ alludes to this fact:

Our sources in the insurance industry are worried the regulatory loophole sets a mandate non-enforcement precedent, and they’re probably right. The longer it is not enforced, the less likely any President will enforce it.

Obamacare continues to unravel…

Update: If the GOP were smart, they would send to all of their constituents the appropriate form to Opt Out of the Obamacare mandate due to higher prices. The net result of this is that very few, if any people, will be paying the mandate/penalty/tax. No wonder the insurance companies are freaking out. This can destabilize the entire market for two years. And lets not pass over the schadenfreude. These plans were cancelled because of Obamacare, and now Obamacare is exempting them from the reason why their plans were cancelled.