The DACA Cases

Scott and I were discussing the DACA cases and while I had not read the briefs or opinions I thought that a due process argument could temporarily prevail against the Administration if the circumstances warranted.  I think it was fair to say that Scott thought the circumstances could not warrant that, ever.  I agreed that without knowing the facts and precedents for this case the current DACA cases might be losers.

Here are two of the most trustworthy legal discussions, both from Volokh Conspiracy, and a link to the California opinion.


I think these cases are surely eventual losers having read this much.  I think Temporary Relief could be justified based on the Justice Department’s missed argument.  Arguing that DACA was never lawful was a loser where arguing DAPA was never lawful had been a winner.

Read the two articles and the Opinion and come to your own conclusions.

I produced this as filler for the missing Morning Report.  Brent, where are you?

Also, Volokh has a new and better for them home at







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.

Madness in the Method?


Uber has ordered 24K self driving Volvo SUVs.

Forget that self-driving without a human monitor is not legal in most jurisdictions.  Assume Uber can rapidly obtain local approval for self driving vehicles. Assume it can cut its labor cost and sidestep its pending fight over whether its drivers are contract or employee.  Assume that by developing its own software controls for these Volvos it can customize successfully to locale and traffic patterns.

What I see is this:  Uber is banking its future on an asset base that will be pretty much worthless in 3-5 years.

I see that as a billion dollars blown every three years.  I see that as Uber having to build and staff and manage its own expert maintenance yards because it is using proprietary software, or having to contract that out at a premium.

It might be a workable model, but it is a HUGE gamble.  Yes or No?





Loony Lefty Jill Stein – Russia, Part Deux

Loony Lefty Jill Stein and the Russian influence investigation

Who is this loony? She claimed:

1] There are “real questions” about whether vaccines cause autism in children.

2] wi-fi in schools might be harming kids.

Her dependence on RT was notable:

3] RT regular Ajamu Baraka, who slammed the “gangster states of NATO,” was her choice for VP.

4] The only network to consistently cover her candidacy and invite her on air was RT.

5] RT hosted a primary debate for the Green Party.

6] She travelled to Russia in 2015 to attend that dinner where Putin lauded Flynn.

7] Shortly before that she attended an RT event and met with the Ambassador.

8] Claimed no knowledge of how and why Assange addressed the Green Convention on closed circuit to promote the wikileaks/Russian exposure of DNC emails.

9] Pretty much spouted the Russian lines about HRC throughout the campaign.

Now she claims that Senate committee interest in her Russian ties is an attempt to smear her and that she sees no evidence of Russian interference during the campaign season, because the intelligence community is often wrong.

Back in the day when the only foreign money in an American campaign was Canadian, MX, or Brit, generally from investors in multinational sellers like Schenley’s and Molson’s and Dos Equis, and generally to both parties, this was all tolerable. It was during the Clinton-Dole race when Chinese and Indian money went to Clinton and Saudi money to Dole in very big sums that we saw how campaigns could be bent and beholden. The Russians knew that this loony was a spoiler on the margins, and they knew that DJT was not a cold warrior R. Their objective was disruption and fragmentation of their adversary, and they could pick a D next time if it suited them, which it might well, against a traditional R.

I don’t know how we can possibly stop it from happening again. But somehow, keeping anti-American, as opposed to simply commercial, interests out of our campaigns would be a good thing. My guess is that the best we can do is continuing exposure.

Could we force American media voting ownership to be limited to American citizens? Would there be a constitutional bar? Could we create a credible ombudsman to expose the source of digital media rumors, in a timely fashion?  I wonder what the Intelligence Committees will advise.

And Jill Stein remains a complete loony.

Copied Right: How astronomers identified the first visitor from another solar system

The Economist explains
How astronomers identified the first visitor from another solar system

Neither bird, nor plane, this is A/2017 U1

Nov 3rd 2017
| by A.B.

ON October 19th Rob Weryk of the University of Hawaii saw something
rather strange. In pictures produced by Pan-STARRS 1, a telescope on
Haleakala, he identified an unusually fast-moving, faint object that
he concluded could not have originated in Earth’s solar system. It
was travelling at more than 25km per second. That is too fast for it
to have a closed, elliptical orbit around the Sun. Nor could its
velocity have been the result of the extra gravitational kick
provided by an encounter with a planet, since it arrived from well
above the ecliptic plane near which all the Sun’s planets orbit.
Indeed, after swinging around the Sun, it passed about 25km below
Earth, before speeding back above the ecliptic plane.

Observations from other telescopes have now confirmed that Dr Weryk’s
object is the first extrasolar object to be spied by astronomers.
The object was originally classified as a comet and thus named
C/2017 U1 (the “C” stands for comet). But it lacked the tail of gas
and dust produced when these icy rocks fly close to the Sun.
Furthermore, an analysis of the sunlight it reflected suggested that
the surface is mostly rock. So it has now been classified as an
asteroid, A/2017 U1, which, judging from its brightness, is about 400
metres wide.

This is puzzling. Comets are formed on the cold periphery of distant
solar systems. Asteroids reside within such systems’ interiors, where
any comet-like volatiles will have been driven off by the heat of
their parent stars. Models of planet formation suggest that
interstellar objects such as A/2017 U1 are more usually comets, as
they can be more easily dislodged from their orbits than asteroids.

One explanation is that over many millennia cosmic rays have
transformed the icy, volatile chemicals that would be expected to
stream off a comet into more stable compounds. Another is that the
Sun is not the first star A/2017 U1 has chanced upon, and its
volatile materials were boiled off by previous stellar encounters.
Or it could indeed be that the object was rocky to begin with—
perhaps once orbiting its parent star in an equivalent of our
solar system’s asteroid belt, before its ejection by an encounter
with a Jupiter-like planet.

Why, then, has nothing like A/2017 U1 been seen before? Those planet-
formation theories suggest such GULLIVER objects should be a
reasonably common sight. Perhaps the theories are wrong. Or perhaps
these interstellar visitors have been overlooked in the past,
and A/2017 U1 will now inspire a spate of such sightings in future.

Sadly for astronomers, A/2017 U1 may not be visible long enough for
these questions to be resolved decisively. It is now charging out of
the solar system towards the constellation of Pegasus—at 44km per
second. Small uncertainties in the calculation of its trajectory
may mean that where exactly it came from and where it is heading
will remain a mystery.

Manafort Indictment Here (and not related to DJT on its face)

Manafort and his partner, Richard Gates, were apparently big time crooks.

The indictment is replete with factual allegations which include defrauding banks, major tax evasion, FBar violations, money laundering [HUGE money laundering], and more. A fascinating read. I have not tried to read between the lines to find the connection to the campaign, if any. I invite you to do so.

dorme con i pesci, Harvey Weinstein

[Any excuse to link this song]

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