I Think Everyone but Thomas Piled on the Poor Guy

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-1091_1bn2.pdf

 

This is 70+ pages of a good lawyer trying convince the Court to incorporate the federal right to claim a fine is excessive (as applied to a civil forfeiture).  The Indiana trial court and appellate intermediate court thought the fine [forfeiture] was excessive and ruled with the defendant, explicitly having decided under the US Constitution.  Indiana Supremes said that was not clearly laid out in any US Supreme Court case, and reversed.

 

So here we are, with a plausible argument before the Supreme Court and nobody even beginning to buy it.  Not RBG, nor Wise Latina, nor Roberts nor Alito.  Not Breyer, who was pretty funny.

 

Click, download, read, and enjoy.

 

And the entire Court, save for CT who was silent, just jumped all over the guy and made his life miserable.

And then the entire Court jumped all over the attorney general for Indiana.  All of them.  Except CT.

 

It is an entertaining read.

 

 

 

 

 

 

 

 

 

 

 

An Interesting Amicus Brief

Were states correct when they forced electors to vote according to the popular vote in those states?  Here are the arguments for elector discretion.

 

http://reason.com/volokh/2018/07/02/presidential-electors-can-vote-with-disc

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.

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

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

https://drive.google.com/file/d/0B1rgmKJRZ5DaM1hBN0lIaTI0eEU/view

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.

The Anti-Inversion Rule is Invalidated

Remember that one of the BHO Admin’s “70 day temporary regulations” was the “Anti-Inversion Rule?”

It was designed to keep American entities from merging with foreign companies to avoid American taxation, and from manipulating fungible items so that the American portion of the merged entity would show minimized income, or even losses.

As a temporary rule it stymied one drug company’s merger. The Admin believed that while it engaged in full APA review it could indefinitely extend its temporary regs pending same.

My friend of 50 years, Lee Yeakel, just said “No”. As the USDCt for the Western District of Texas, Austin Division, he ruled that the Anti-Inversion Rule was invalid because the APA had not been followed.

This business of avoiding the lengthy procedures required to vet a far reaching regulation got out of hand with BHO – remember the immigration regulations that the USDCt for the Southern District of Texas invalidated? As with that decision, In this case, the Judge agreed that the proposed rule was not inherently arbitrary or capricious, but that it just could not be a valid exercise by the Executive branch without the benefit of publication in the Federal Register, comment, and plenty of the back and forth that the APA requires.

Remember that Congress also gets the benefit of notice and prep time when the APA is followed, and can stop a proposed reg cold if it determines the proposal violates rather than applies the statute. Perhaps as important, the public, the interest groups, and those whom the reg is going to affect get their lawyers in gear.

The DJT Admin is also abusing the temporary reg loophole to try to avoid the cumbersome APA, as with its own “temporary” immigration regs.

But the cumbersome APA is in fact the legal mechanism that we have in place to tame executive bureaucratic overreach.

Here is an article on the Austin case:

https://www.davispolk.com/files/2017-10-02_court_invalidates_anti-inversion_regulation.pdf

What We Are Talking About When We Talk About Trayvon Martin

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The trial of George Zimmerman, a neighborhood vigilante who shot and killed Trayvon Martin, an unarmed black teenager who was walking back to his home after buying tea and Skittles at a convenience store, has gone to jury and there is no telling what the verdict will be. Most pundits and trial watchers feel the prosecution was less than convincing, particularly in proving that Zimmerman had intent or malice.

It seems that at any particular time we as a culture are following some Trial Of The Century or another. Part of this is the necessary consequence of having justice-themed news shows like Nancy Grace. The unquenchable maw of the newscycle demands fresh meat continuously. But Martin was not the photogenic blond victim that usually make the story line-up.

Kathleen Parker recently took a stab at why this trial in particular fascinates us.

The Zimmerman trial is riveting not because two men got in a scuffle and one of them died or because one was a teenager and the other an armed adult. It is that one was black, the supposed victim of a profiling vigilante, and the other white.

But that isn’t totally why the trial is news. It’s not that white guy shoots black punk, it’s what it took to get the case to be taken seriously. Most of the early outrage triggered by the descent of what some have called racebaiters was over how perfunctorily the initial investigation was. It wasn’t until the media storm started that the Barney Fife-ish Sanford Police Department took the case seriously. They knew who killed Trayvon Martin. They just didn’t think it was worth trying to send Zimmerman to jail over it. Arguably, second degree murder was publicity-driven over-reach, but Zimmerman didn’t even get charged with littering. The unknown hypothetical of whether it would have been treated differently if either party had been a different ethnicity is what set off the tinderbox.

As Juan Williams even-handedly puts it:

Liberal and conservative news TV and radio have played to the racial theme, too. The left, notably Rev. Al Sharpton, have made the case a crusade for racial justice. The right-wing media, especially talk radio, has responded by making Zimmerman a hero.

So what makes Zimmerman a hero to the right wing? That is a very complicated question. In part the trial is just as much about gun rights as it is about racial justice. This is the underdiscussed aspect of the left/right bifurcation on this trial. It comes down to the most loaded word in my typical formulation of the incident, ‘vigilante’. Just how culpable is Zimmerman for initiating the incident? He had a concealed carry permit and was within his rights to get out of his car and follow someone through open space despite the admonition of the emergency dispatcher not to. But there is always the fine line of having rights and the responsible exercise thereof.

Should Zimmerman have gotten out of the car in the first place? What did he mean by saying ‘Fucking punks. These assholes, they always get away’? Was it frustration over ineffective law enforcement in his neighborhood or was there racial animosity over ‘those’ people? Who struck the first blow? And does it matter?

Those biggest question the jury has to wrestle with seems to be: Was Zimmerman acting in self-defense? We will probably never know because Zimmerman has been verifiably less than truthful about that night. And the only other person who knows what happened is dead.

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