Supreme Court, limits of Chevron deference, 9th Circuit, DoL

Encino Motor Cars is a Supreme Court case from 2016. It isn’t over yet as the case was sent back to the 9th which recently ruled again. Here is the background.

The FLSA requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. In 1966, Congress enacted an exemption from the overtime compensation requirement for “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.

Congress authorized the DoL to promulgate necessary rules, regulations, or orders with respect to this new provision. The Department exercised that authority in 1970 and issued a regulation that defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles . . . which the establishment is primarily engaged in selling.” The regulation excluded service advisors, who sell repair and maintenance services but not vehicles, from the exemption. Several courts, however, rejected the Department’s conclusion that service advisors are not covered by the statutory exemption.

So here DoL simply dropped service advisors, who at that time were always engaged in selling services as well as scheduling, from the exemption created by Congress. Not a big stretch for Fed Courts to say “WTF?”

From 1978, then, until 2011, DoL treated service advisors as exempt, bowing to the various court rulings.

In 2011, without explanation, DoL reversed field and reiterated its 1970 regulation, denying the exemption.

Then the 9th Circuit ruled that “Chevron deference” applied and upheld DoL.

In 2016, the Supremes, all 8 who were sitting, agreed that Chevron deference could not apply to reversal of a long standing regulation without any explanation. The decision was 6-2, with Thomas and Alito wanting to Render and throw out the reg, but the majority Remanded to the 9th with instructions to decide without reference to Chevron deference. Who was right procedurally is an interesting side argument. The law school view is that the Supremes announce policy of the law but don’t weigh facts, but here it may have been that there were no facts to weigh. I didn’t read the record, so I don’t know. IOW, Thomas and Alito might have been exactly on point, or not.

So as a practitioner I would have wanted to know whether service writers had become mere schedulers or not. In my own experience, American dealerships sell service through the writers but Lexus and Subaru do not. YMMV. To justify a change in the reg, if I were at DoL, I would have attached a certified finding that service writers were not primarily sales force and exhibited the service writers’ employment descriptions or other materials before requesting that the 9th rule that the case had become moot on Remand, based on the Supremes’ requirement for a justifiable explanation. Or something like that.

But the DoL stood pat. And now the 9th has said “service writers are not primarily sales force” from the record before them, thus ruling the same way, but without any Chevron deference.

Maybe so. Maybe not. Again, gotta read the record, not just the opinions, and I have not. But there will likely be an Encino II at the Supremes.

If the Supremes had simply decided as Alito and Thomas wanted, the DoL could still have gone back to the drawing board and justified the change going forward, if there were facts to support it.

My gut says that Subaru and Lexus service writers, who never tried to sell me anything, should not be exempt, but that Ford service writers who always tried to sell me the Moon should be exempt. And I think that the regulation should not be “one size fits all” but rather one size fits the statutory definition, administrative convenience be damned. “Administrative convenience” is especially a problem when dealing with the FLSA, because the Wage and Hour guys have had a history of setting traps for the unwary.

Morning Report: Wages and salaries accelerating 1/31/18

Vital Statistics:

Last Change
S&P Futures 2835.5 11.0
Eurostoxx Index 396.6 0.4
Oil (WTI) 64.2 -0.3
US dollar index 83.0 0.0
10 Year Govt Bond Yield 2.71%
Current Coupon Fannie Mae TBA 103.591
Current Coupon Ginnie Mae TBA 103.688
30 Year Fixed Rate Mortgage 4.19

Stocks are higher this morning after global markets recovered overnight. Bonds and MBS are flat.

We should get the FOMC decision today around 2:00 pm EST. Be careful locking around then. The consensus seems to be that this will be a no change / hawkish tone type of statement.

This will be Janet Yellen’s last FOMC meeting. Jerome Powell seems to be cut more or less from the same cloth as Yellen, so the Fed’s go-slow approach to hiking interest rates will probably continue.

Treasury increased the size of its debt issues for the first time since 2009 this morning on the back of increased deficit spending and lower purchases from the Fed. They are offering $66 billion of 3, 10, and 30 year notes this time around, an increase from $62 billion in November. Less purchasing by the Fed plus increased issuance = higher interest rates, at least at the margin.

Mortgage Applications fell 2.6% last week as both purchases and refis fell by the same amount. The average 30 year conforming rate increased 6 basis points to 4.41%

The ADP jobs number came in at 235,000 last month, which was higher than expectations. The Street is looking for 175,000 jobs in this Friday’s jobs report.

Compensation is accelerating, according to the Bureau of Labor Statistics. The Employment Cost Index rose 0.6% in the fourth quarter, and is up 2.6% YOY. Private Industry compensation rose faster than government, with wages and salaries up 2.8% YOY. A year ago, that annual increase was 2.3%. The industry with the biggest increase? Truck drivers.

The “typical” mortgage payment rose 12% last year, according to CoreLogic. This measure takes the median home price and calculates the principal and interest payment using the prevailing Freddie Mac mortgage rate and assumes a 20% down payment. They are looking for this payment to increase another 13% next year as home prices and interest rates continue to rise.

Pending home sales rose 0.5% in December, according to NAR. Home sales are being depressed by tight inventory despite strong growth in wages and jobs.

Morning Report: Housing inventory and entry level homes 1/30/18

Vital Statistics:

Last Change
S&P Futures 2839.5 -14.0
Eurostoxx Index 397.5 -2.3
Oil (WTI) 65.0 -0.6
US dollar index 83.1 -0.3
10 Year Govt Bond Yield 2.71%
Current Coupon Fannie Mae TBA 103.591
Current Coupon Ginnie Mae TBA 103.688
30 Year Fixed Rate Mortgage 4.19

Stocks are lower this morning on overseas weakness. Bonds and MBS are down.

The FOMC meeting starts today. This will be Janet Yellen’s last hurrah, and that will probably dominate the news more than whatever decision they make.

Consumer Confidence improved in January, according to the Conference Board. Confidence is at levels not seen since the late 90s.

Home price appreciation continues its torrid pace, according to the Case-Shiller Home Price Index. The housing market is partying like it is 2005, with the usual suspects (San Diego, LA, Lost Wages) leading the charge. Case-Shiller Chief Economist David Blitzer had this to say about home price appreciation: “Home prices continue to rise three times faster than the rate of inflation… Given slow population and income growth since the financial crisis, demand is not the primary factor in rising home prices. Construction costs, as measured by National Income and Product Accounts, recovered after the financial crisis, increasing between 2% and 4% annually, but do not explain all of the home price gains. From 2010 to the latest month of data, the construction of single family homes slowed, with single family home starts averaging 632,000 annually. This is less than the annual rate during the 2007-2009 financial crisis of 698,000, which is far less than the long-term average of slightly more than one million annually from 1959 to 2000 and 1.5 million during the 2001-2006 boom years. Without more supply, home prices may continue to substantially outpace inflation.”

The lack of supply is puzzling, however part of what has pushed demand higher has been affordability due to decreasing interest rates and increasing wages. Home price unadjusted for inflation are back to bubble levels, however when you take into account inflation, they are not. As I argued before, affordability is a function of interest rates as much as it is about home prices. Borrowers focus on the monthly payment, not necessarily the sticker price. As far as the lack of supply, I think a lot of this is standard post-bubble psychology, where lenders and builders become more risk-averse (and often overcorrect to the other direction). Yes, regulation does play a role here, however post-bubble recoveries generally are weaker than normal because of this change in psychology. Eventually fear of being caught with too much inventory translates into fear of missing out. Despite years of below-average inventory, we aren’t there yet.

The outlook for housing this year remains similar to what we have seen for the past several years – tight inventory constraints will keep sales down while rising interest rates will affect affordability. The bottleneck is tightest at the lower price points – where the first time homebuyer is most likely to be found. The latest NAR exiting home sales report has supply overall around 3.2 month’s worth. At the entry level, it is even tighter: in the price range of $125k – $250K, it is probably around 2.7 months or so. Unsurprisingly, we are seeing the biggest price appreciation in that segment as well. Here is a chart of inventory over time: We are at levels last seen during the bubble years:

Tonight Donald Trump will give his State of the Union Speech in front of Congress. The focus will be a $1.5 trillion infrastructure plan. Part of the plan will include a process for streamlining the approval process. Gary Cohn had this to say on CNBC: “He’s going to talk about a trillion and a half dollars of investment, but more importantly, he’s going to talk about streamlining the approval process on infrastructure,” Cohn said. “Right now, we have an infrastructure approval process that takes seven to 10 years to build relatively simple roads. We need to streamline that to less than two years.”

I talked about the Mick Mulvaney memo to CFPB staffers and how they intend to end regulation by enforcement action, which was the MO of the Obama / Cordray regime. The Labor Department is also ending another Obama policy of refusing to give guidance to companies that ask for it. This is yet another example of the regulatory environment taking a less adversarial approach to the private sector, and this should translate into a stronger economy and mitigate some of the risk aversion I alluded to earlier.

Tax reform is translating into more business spending headlines. Exxon-Mobil plans to add another $35 billion to its previous $15 billion expansion, and Pfizer plans to invest $5 billion. Given that capacity utilization is still historically low, this is somewhat surprising. Eventually, these newfound animal spirits have to affect the homebuilders, right?

Years of central bank manipulation of the risk free rate has created a slew of questionable investments. Remember the PIIGS? (Portugal, Ireland, Italy, Greece, and Spain – the high yielding Euro states with massive budget issues?) Portugal has lower yields than the US right now. The Japanese Central Bank has been directly buying Japanese equities. If there is one “black swan” out there right now, it is the mal-investment that has been driven by central banks pushing yields to the floor in order to support asset prices.

Morning Report: FOMC and Jobs Report will be the highlights of the week 1/29/18

Vital Statistics:

Last Change
S&P Futures 2867.8 -6.8
Eurostoxx Index 400.4 -0.2
Oil (WTI) 54.7 -0.4
US dollar index 83.4 0.3
10 Year Govt Bond Yield 2.71%
Current Coupon Fannie Mae TBA 103.591
Current Coupon Ginnie Mae TBA 103.688
30 Year Fixed Rate Mortgage 4.19

Stocks are lower this morning on no real news. Bonds and MBS are down.

This should be a big week for the bond market, with the FOMC meeting in the middle of the week and the jobs report on Friday. No move is expected at the FOMC meeting, but people will focus on the language of the statement. Since this is Janet Yellen’s last meeting most of the attention will probably be on her and not the statement.

Aside from the Fed meeting this week, Treasury will announce 10 and 30 year bond issues, and the expectation is that it will be the first increase since 2009. With Treasury selling more paper, while the Fed cuts its purchases, it could be a rough week for bonds.

Personal Incomes and Personal Spending rose 0.4% in December. The PCE price index was up .1% MOM / 1.7% YOY and the core PCE price index was up .2% MOM and 1.5% YOY. This puts the core PCE index at an increase of 1.5% for the year, and marks the 6th year in a row inflation has undershot the Fed’s target. The savings rate is the lowest since 2005.

Freddie Mac’s total loan portfolio increased 9% on an annualized basis in December. Their DQ rate slipped from 1.08% to .97%.

Home prices rose annually for the 67th consecutive month to $283,000 according to the Black Knight Financial Services Home Price Index. The MOM gain was .27%. As of November, home prices were up 6.5% for the year.

Morning Report: First estimate of Q4 GDP disappoints. 1/26/18

Vital Statistics:

Last Change
S&P Futures 2850.8 9.5
Eurostoxx Index 400.8 2.2
Oil (WTI) 66.5 0.0
US dollar index 83.1 -0.3
10 Year Govt Bond Yield 2.63%
Current Coupon Fannie Mae TBA 103.591
Current Coupon Ginnie Mae TBA 103.688
30 Year Fixed Rate Mortgage 4.17

Stocks are higher this morning as Trump speaks in Davos. Bonds and MBS are up small.

The first estimate for 4th quarter GDP came in at 2.6%, a touch below the 2.9% Street estimate. THis was a drop from the 3.2% growth rate in the third quarter. A larger-than-expected trade deficit, along with some inventory adjustments accounted for the miss. It will be revised twice more in the next month or so. The GDP price deflator (a measure of inflation) was 2.4% and consumer spending was a robust 3.8%.

Housing increased 6.8% and accounted for about .84% percentage points of the growth. Housing construction will be the engine that will pull the economy going forward. We have tremendous demand for new housing and tight labor markets. Getting back to normalcy (1.5 million units a year) in housing starts will make a big difference. If we get to what is typically observed coming out of a recession (2 MM +) we will be looking the best economy since the 90s.

The Fed Funds futures didn’t really react much to the reading, and are currently handicapping a 71% chance of a 25 basis point hike at the March meeting. Next week’s meeting is expected to maintain the current Fed Funds rate.

Durable Goods orders increased 2.9% last month, which was better than expectations. Ex-transportation they rose 0.6%. Capital Goods orders fell 0.3%. On a YOY basis, all numbers were up smartly: Durable goods up 8.2%, DGXT up 7%, Cap goods up 8.1%. More evidence of a strong economy.

Donald Trump spoke at Davos. He stressed that America is open for business and that he is willing to negotiate multilateral trade agreements (think TPP). He mentioned tax reform and that America is open for business.

A non-profit in New Mexico has come up with a concept to help get homeowners in their first home without much of a downpayment and without MI. They issue 2 mortgages, one for 80% of the loan, which is sold on the secondary market without MI, and then a second loan for 18%, which they hold. Supposedly the performance metrics for these loans are better than the control group.

Morning Report: New Sheriff In Town at the CFPB 1/25/18

Vital Statistics:

Last Change
S&P Futures 2850.3 9.0
Eurostoxx Index 401.9 1.1
Oil (WTI) 66.5 0.8
US dollar index 82.9 -0.4
10 Year Govt Bond Yield 2.65%
Current Coupon Fannie Mae TBA 103.591
Current Coupon Ginnie Mae TBA 103.688
30 Year Fixed Rate Mortgage 4.17

Stocks are higher after the European Central Bank left rates unchanged. Bonds and MBS are flat as well.

The German Bund is getting pounded on the ECB decision. At some point the weakness will probably flow through to Treasuries.

Treasury Secretary Steve Mnuchin noted that a weaker dollar is beneficial for trade and opportunities. He was peppered with questions over whether that amounts to a change from the government’s historical support for a stronger dollar. He later clarified his remarks, however the currency is getting hit a little on the remarks and persistent dollar weakness will eventually translate into higher rates.

Mortgage Applications increased 4.5% last week as purchases rose 6% and refis rose 1%. These numbers are adjusted for the MLK holiday. Note that the Spring Selling Season is just around the corner – it unofficially starts right around Super Bowl Sunday.

New Home Sales fell to 625k in December a drop from November’s downward-revised 679k print. November’s number was an outlier and was sure to be revised down, which probably explains why the estimates were too high.

The Index of Leading Economic Indicators improved to 0.6% from 0.5%.

Initial Jobless Claims rose to 233k from a downward-revised 216k the week before. The last time the US hit 216k initial filings, we had a military draft.

House prices rose 0.4% month-over-month and 6.5% YOY according to the FHFA House Price Index. As usual, the West Coast and Mountain States led while the Northeast / Mid-Atlantic lagged.

Existing Home Sales fell 3.6% MOM in December and are up 1.1% YOY, according to NAR. Inventory for sale fell 10.3% to under 1.5 million units which is a record low. (going back to 1999) 1.5 million units represents only 3.2 months’ worth at the current sales pace. A balanced market is about 6.5 months. The median home price rose 5.8% to $246,800. The first-time homebuyer was 32% of sales, flat YOY.

Median income in the US probably came in around 60k for the end of 2017. This would put the median house price to median income ratio at 4.1 times. Historically, that number has been in the 3.1 – 3.6 range, however differences in interest rates probably explain some of that. Given the tightness in inventory and what appears to be the stirrings of wage growth, house prices should be in for another strong year. The wild card will be the luxury properties in high tax states which are becoming less affordable due to tax reform. Note that luxury home prices did rise 7% in Q4, according to Redfin.

The Home Despot is not living up to its name. $1,000 bonuses for employees.

Many loan officers have noticed that FHA and VA pricing has been terrible as of late, especially when compared to conventional rates. This is an industry-wide phenomenon. Nobody really has a good explanation of why this is happening, although it is being driven by a lack of investor appetite for higher coupon Ginnie Mae TBAs. As a general rule, Ginnie Mae TBAs are more sensitive to rate changes than Fannie Mae TBAs, so any increase in volatility will affect Ginnies disproportionately. This is especially strange since the government has taken steps to protect MBS investors from serial refinancings. Whatever the cause, the pricing is being driven by the machinations of the primary TBA market and not internal pricing changes.

Mick Mulvaney, Acting Director at the CFPB, put out a memo to staff recently giving his philosophy going forward. Suffice it to say, he will not be another Richard Cordray. It is worth reading in its entirety, as it largely amounts to a rebuke of his predecessor. Richard Cordray was quoted in Politico saying : “We wanted to send a message: There’s a new cop on the beat… Pushing the envelope is a loaded phrase, but that’s absolutely what we did.” Mulvaney’s response: “Simply put: that is what is going to be different. In fact, that entire governing philosophy of pushing the envelope frightens me a little. I would hope it would bother you as well. We are government employees. We don’t just work for the government, we work for the people. And that means everyone: those who use credit cards, and those who provide those cards; those who take loans, and those who make them; those who buy cars, and those who sell them. All of those people are part of what makes this country great. And all of them deserve to be treated fairly by their government. There is a reason that Lady Justice wears a blindfold and carries a balance, along with her sword.”

Other key points:

“When it comes to enforcement, we will be focusing on quantifiable and unavoidable harm to the consumer. If we find that it exists, you can count on us to vigorously pursue the appropriate remedies. If it doesn’t, we won’t go looking for excuses to bring lawsuits.”

“On regulation, it seems that the people we regulate should have the right to know what the rules are before being charged with breaking them. This means more formal rulemaking on which financial institutions can rely, and less regulation by enforcement.”

“Speaking of data: the Dodd Frank Act requires us to “consider the potential costs and benefits to consumers and covered persons.” To me, that means quantitative analysis. And while qualitative analysis certainly can play a role, it should not be to the exclusion of measurable “costs and benefits.” In other words: there is a lot more math in our future.”

Morning Report: Global risk appetite is at an extreme 1/23/18

Vital Statistics:

Last Change
S&P Futures 2833.5 -1.8
Eurostoxx Index 403.1 0.9
Oil (WTI) 63.7 0.3
US dollar index 84.3 -0.1
10 Year Govt Bond Yield 2.62%
Current Coupon Fannie Mae TBA 103.591
Current Coupon Ginnie Mae TBA 103.688
30 Year Fixed Rate Mortgage 4.03

Stocks are down as the government shutdown is over for the moment. Bonds and MBS are up on the back of the Bank of Japan continuing its stimulative measures.

Democrats agreed to end their filibuster over funding the government yesterday in exchange for an extension of the CHIP program. We will re-convene in 3 weeks to discuss immigration, etc. It turned out that the polls never really went the way Democrats had hoped.

The global risk appetite is about as extreme as it has ever been, according to Goldman. So far this year, stocks have been the big winner, while bonds have been the big loser. Is this misplaced? Global growth is the best it has been in a decade, and the world’s second biggest economy (Japan) may have finally turned the corner. Bank executives in Davos are worrying about financial complacency and the possibility of bubble-style thinking. I think it pays to differentiate between what the markets are saying and what is actually happening for businesses right now. While investors may be willing to pay anything for growth, business in general is not. US business has been in maintenance mode with respect to capital expenditures for the past decade and the fear of having too high of a cost structure is still greater than the fear of missing out on business. It has been this way since the stock market bottomed, and might have more to do with global central bank liquidity measures than actual business psychology. The million dollar question: does this circle get squared via a more robust business expansion? Or does it happen via a stock market deflation as global central banks normalize policy?

China is mulling a property tax to tame its real estate bubble. The normal transaction costs that are seen in the US (6% brokerage fees, property taxes) are much lower in China, which has helped fuel their bubble. When it bursts, they will probably deal with it the way Japan did – imposing so many costs to transacting that sales dry up. It prevents fire sales, but it also means the economy will be stuck in a deflationary environment for a long time.

Delinquencies increased in December, primarily driven by the hurricanes last fall and general seasonality. On the other hand, foreclosure starts hit a post-crisis low, falling to 44,500. The number of homes in foreclosure decreased by 32% YOY.

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