Memorial Day Bits and Pieces

What is a conservative?

https://www.washingtonpost.com/opinions/the-best-way-to-tell-if-someone-is-a-conservative/2018/05/25/fdc5a1fa-5f83-11e8-a4a4-c070ef53f315_story.html?utm_term=.e3ae61ec8985

Will’s perspective here has resonance for me, especially because I agree that TR was the progenitor of the modern Presidency.  I have always thought, since law school anyway, that Taft deserved better placement in history, but Wilson, quite a bit worse.

I will be reading McCain’s final book as soon as it is in paperback.

 

Our Adriatic cruise was the first pleasure cruise longer than eight hours for me.  Plusses:

  • we got a taste of several different “go to” destinations – the ruins at Delos, the ruins at Minos, the UN historical site at Alborello, the mountain views on Corfu, the surprisingly [to us] inviting old Dubrovnik, and Venice.
  • a decent amount of walking at each destination.
  • perfect May weather, 70s, no rain.
  • relatively low cost way to “sample” several destinations.
  • comfortable and efficient cabin on ship (MSC Lirica)
  • talented entertainers nightly in big production staged music, magic, dance, and acrobatics.
  • a world of travelers and a core crew fluent in five languages; mix of ages, families, singles.

Minuses:

  • Cruise ships are apparently studies in captive audience selling – massages, youthful skin treatments, yoga, dance lessons, photos, duty free inflated priced jewelry, and much more.
  • The shipboard food is plentiful but uneven in quality –  e.g.; great fresh fruit but beef like shoe leather no matter how you order it.
  • Public spaces are superficially glitzy, like casinos – visually tiring after a few days.
  • People past middle age in bikinis and skinny briefs flaunting beer guts and worse.
  • Bad lounge singers in the bars – remember Bill Murray’s parodies?
  • Ping Pong on the deck of a ship making 20 knots.

 

I had never intended to cruise anywhere except perhaps a river or the Inner Passage from Alaska to Vancouver.  I am still of that mindset.  We did this trip because my brother in law arranged it for his wife’s 60th birthday. Thus there were three siblings and their spouses traveling together.  We all get along well so Rosanne and I were willing to join in.

My bucket list is long and my time may not be.  Too many National Parks left, plus Australia, New Zealand, more UK, more Canada, and more Italy.  Cruises are not the way to do that.  And Corfu may be pretty, but it isn’t spectacular like the American west and northwest, or many stops on the Canadian Pacific route from Vancouver to Banff.

 

April 18, 1906

The San Francisco Earthquake destroyed much of the city and left thousands homeless.

 

There is a website devoted to “What if it happened now?”

 

https://www.usgs.gov/natural-hazards/science-application-risk-reduction/science/haywired-scenario?qt-science_center_objects=0#qt-science_center_objects

March 31, 1968.

LBJ announced on national TV and radio that he would not run for President in 1968.

I heard the news with 31 other sailors and marines in the orthopedic ward of Newport Naval Hospital.  I was one of two patients who had not been wounded in combat.  The other was a sailor who had fallen from the mast in a storm.  I had reinjured a herniated disc that I first crushed working in a factory in high school.

The Army had rejected me as 1Y but I thought my back was cured and I passed my somewhat less rigorous Navy OCS physical, for which I volunteered.  Unfortunately I only made it about ten days through OCS when a 4 AM calisthenics workout completely buckled my back sometime between sit-up 72 and 75.  My squad leader, a Stanford PhD, gently kicked me in the ribs and told me to get moving.  I told him I couldn’t even get up.  I was carried to the hospital.

Doctors made rounds in the orthopedic ward on Wednesdays.  Our daily contact was (Nurse) Commander Jensen.  She ordered me to strict bed rest and gave me pain killers.  I couldn’t actually walk.  Had to yell for an orderly to get a bedpan.  One night, maybe the third or fourth, I had to piss at midnight.  I yelled for a bedpan.  The giant Marine sergeant across from me who had one leg blown off  growled “Pipe down, OC.”

I climbed out of bed and crawled on fours to the head, pulled myself semi-erect on the porcelain, and pissed.  I crawled back to my bed.  Commander Jensen was waiting for me.  I don’t know why.  She reminded me brusquely that I had been ordered to strict bedrest.  When I started to respond she pointedly told me that she had not asked me a question.  Then she had an orderly pump me full of something that knocked me out for 30 hours.

The stay at NNH was the closest thing to living in Yossarian’s world I could have imagined.  Second Wednesday on rounds, the Marine sergeant reported a seaman for uncontrollable farting [true] even in the face of having been ordered by the big Marine to control himself.  The seaman was moved out on doctor’s orders and we were told he was moved to Section 8 [psych ward] for evaluation.

Third Wednesday on rounds  a USN Regular doc suggested fusion surgery, but I asked him if traction were available as an alternative because it had worked nine years before.  He told me the surgery was no big deal and moved on.  A trailing doc came over to me and whispered that he was a Reservist and a surgeon.  He whispered “Did that monkey say he wanted to operate?” I nodded.  He said “Don’t let those monkeys touch you.”

When I told Commander Jensen that I refused surgery she came back with forms for me to sign.  Waiver of Vet bennies.  My thought was that because I had passed the OCS physical the Navy could not rely on pre-existing condition.  Well, we all know the Navy wins that one and I had no ability to get to a law book from strict bed rest, anyway.  So eventually I signed the waiver.

On my last Wednesday the docs gave me the going away present of 400+ horse pill sized Darvons in a gallon jug.

Lady Madonna was the most played song on the radio.  Nobody in the ward wanted LBJ to quit.  And that’s how it was 50 years ago this weekend.

 

 

 

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.

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/09/assessing-the-administrative-law-claims-against-rescinding-daca/?nid&utm_term=.d99021a00f12

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/04/the-case-for-daca/?utm_term=.dc9d6e8e66f1

and

https://assets.documentcloud.org/documents/4345906/1-9-18-DACA-Opinion.pdf

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 Reason.com.

 

 

 

 

 

 

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?

https://www.cnet.com/roadshow/news/uber-orders-24000-volvos-for-self-driving-program/?ftag=CAD13782fc&bhid=100000000000000000000000100284611

 

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.

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