Monday, May 20, 2019

[U] Also No Surprise: Congress May [By Subpoena] Investigate The President's Financial Wrongdoing -- Ever Since 1860, And Pres. Buchanan...

UPDATED -- later Monday night: As proof that the Universe has a keen sense of karmic justice, Trump's already-filed appeal of the below order has been assigned tonight to. . . wait for it. . . an exceedingly able would-be, shoulda'-been Supreme Court Justice [but instead still an appeals court judge] -- one Merrick Garland. Delicious. He will simply apply the law, and Trump will lose -- but it will be sweet irony, just the same. End update.

Trump now has seven days, and then -- unless the DC Circuit Court of Appeals [not likely], or the US Supreme Court [vanishingly unlikely], grants an emergency appeal to Trump -- Trump's accounting firm must turn over his records, from 2011 to date.

This is exactly as we predicted, from the able Judge Mehta, in DC. We are a nation of laws, not men. A bit, from the 41 pager, tonight:

. . . .On April 15, 2019, the Committee on Oversight and Reform of the House of Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided accounting services to President Trump. The subpoena called for Mazars to produce financial records and other documents relating to President Trump personally as well as various associated businesses and entities dating back to 2011. . . .

The decision to issue the subpoena came about after the President’s former lawyer and confidant, Michael Cohen, testified before the House Oversight Committee that the President routinely would alter the estimated value of his assets and liabilities on financial statements, depending on the purpose for which a statement was needed. For instance, Cohen said that the President provided inflated financial statements to a bank to obtain a loan to purchase a National Football League franchise. But when it came time to calculate his real estate taxes, the President would deflate the value of certain assets. To support his accusations, Cohen produced financial statements from 2011, 2012, and 2013, at least two of which were prepared by Mazars. . . .

The Committee also says that the records will assist in monitoring the President’s compliance with the Foreign Emoluments Clauses. These are facially valid legislative purposes, and it is not for the court to question whether the Committee’s actions are truly motivated by political considerations. Accordingly, the court will enter judgment in favor of the Oversight Committee. . . .

Couldn't happen to a nicer guy. Onward.


No Surprise: Merck Wins A New Hearing, In The District Courts, On Wyeth Preemption.

We've been covering this narrative arc pretty steadily for eleven and a half years -- both as "Wyeth-style" pre-emption, as enunciated by the Supremes almost a decade ago, and in the Fosamax® femur fracture cases -- more generally. [Those links are but three examples -- of hundreds of posts here, just search Fosamax.]

This morning, the US Supreme Court agreed with Merck. It did all it could to enhance the Fosamax warnings expected of it, under state law, and the US FDA specifically rejected the warnings, as label copy, under federal law. SO no suit for failure to warn should lie, the Supremes have held [courtesy of the sublime]:

. . . .Thus, in a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. These conclusions flow from this Court’s precedents on impossibility pre-emption and the statutory and regulatory scheme that the Court reviewed in Wyeth. See 555 U. S., at 578. . . .

Judgment: Vacated and remanded, 9-0, in an opinion by Justice Breyer on May 20, 2019. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Chief Justice Roberts and Justice Kavanaugh joined. . . .

Now you know -- onward, still with a houseful, of adult kids. . . . Smile!


Thursday, May 16, 2019

New Trump Admin. Status Report: Already, An Additional 4,108 Kids Likely Separated... Have Been Found.

I am disgusted. That's not the good news -- that's the bad. Here is the latest, in advance of tomorrow's hearing before the able Judge Sabraw, in San Diego.

I wrote about 900 words on this before my battery died on the train -- so do read this backgrounder.

The bottom line is that if we found over 4,100 in a few weeks -- and we ["we" is now appropriate, for Trump did this in all of our names!] only have until late October 2019, to find the rest -- potentially over an additional 46,000. . . that would put the total of kids ripped from families -- in clear violation of applicable federal law. . . at over 54,000.

Since the USA had and has the resources to have averted all of it, and we well-knew it was in violation of treaties, and law. . . Trump easily sinks below any third world dictator, for human rights violations, and wanton cruelty.

That is (and will be) his enduring legacy. He is. . . a monster, not a man.

Onward; entirely out of good will tonight.

Wednesday, May 15, 2019

[U, With 2016 Supreme Court Precedent] We All Know Alabama’s Law Is Unconstitutional.

Yes, it will fall. Just as the Texas attempts did in 2016, before the Supremes.

So too, with the pending Ohio, Mississippi and Georgia laws (already ACLU-challenged), and the proposal in Louisiana. [The now-dated graphic at right honors Sen. Doug Jones, now a very vocal supporter of women's rights of agency, over their own bodies -- in Mississippi, and nationwide.]

But the cruelty and depravity of it all. . . . saddens me, as I know the cruelty of it — is the end goal of the proponents. So in one sense, they’ve already won — at least a little.

Get active. Resist wherever and whenever you are able.


Monday, May 13, 2019

In Court This Morning — But Two To Read...

I will come back to these — on the idea that Trump cannot deport “credible fear” would-be asylees to Mexico without hearings, first. Read Number One. . . And Number Two.

These come from a ongoing trial level matter, called Padilla v. ICE, in the federal courts in Seattle:

. . .Last month, this Court issued a preliminary injunction order requiring the government to provide Plaintiffs a prompt bond hearing that comports with due process. See Dkt. 110. Two weeks later, the Attorney General issued Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019), holding that members of the Bond Hearing Class have no statutory right to a bond hearing. 27 I. & N. Dec. at 509-10.

If Matter of M-S- is permitted to go into effect, for the first time in nearly half a century, asylum seekers who are present in the United States after having effected an entry will be locked up pending their removal proceedings — for months and potentially even years — without ever receiving a bond hearing on whether their detention is justified, much less a hearing that provides due process. Defendants now seek to vacate the preliminary injunction based on this change in law. See Dkt. 114. Plaintiffs oppose Defendants’ motion on two grounds. . . .

As ever, onward.


Thursday, May 9, 2019

The Esteemed Prof. Tribe's Brief -- On Why Trump's Pardon Of The Criminal Joe Arpaio Should Fall...

We simply must offer (and commend) this, to the careful attention of anyone. . . who is a fan of life-long learning. Learning. . . what our founders intended, as they set out our framing documents, about the pardon power.

Here's a hint: they didn't countenance pardons for people who openly hindered and intentionally violated court orders which were designed to protect basic fundamental civil-, and human- individual rights.

Here's a bit of it, but do go read it all. It is likely that the Ninth Circuit will (as early as this Summer) hold that Trump overstepped his constitutional abilities, in pardoning the odious "Sheriff Joe".

. . . .Courts recognize that the pardon power is not unbounded; it is part of the constitutional scheme and must operate within constitutional limits. . . . The Arpaio pardon transgressed three such limits. . . .

[T]he courts [are vested by the Constitution] with independent authority to safeguard the rights of individuals. Critical to that independence is the judiciary’s power to enforce its own orders through contempt proceedings without relying on the whims of the executive branch. The Arpaio pardon undermines that independence and thus the judicial power to remedy violations of individual rights. . . . [T]he President’s duty [is] to take care that the laws be faithfully executed -- a responsibility that bars him from encouraging lawlessness by pardoning a figure renowned for his assaults on constitutional rights. . . .

No President may issue a pardon that interferes with the federal courts’ power to vindicate individuals’ constitutional rights through duly issued injunctions and contempt orders. And expanding the pardon power to enable total exoneration through vacatur is corrosive of the rule of law and outside the bounds of any recognized Presidential power. . . .

Enforcing these limitations, the Framers understood, would become the special province and structural role of the courts. “Limitations of this kind,” Hamilton wrote, “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .” THE FEDERALIST NO. 78, at 465. . . .

Now you know. And my boy, Hamilton -- is prominently featured. Smile. Onward.


Wednesday, May 8, 2019

Latest Status Report Filed Overnight, In Ms. L. Class Action...

There will be another status hearing this afternoon, in San Diego, before Judge Sabraw.

Here is the latest 17 page update -- we still have perhaps 47,000 children to advise about their rights; and probably a third of those to yet. . . reunite with their parents.



We Now Have The Three Judge Panel Opinion: In The Refoulement Cases -- Innovation Law Labs...

This is not the "big win" Trump claims it is; it is procedural only. And the dissent is right; the majority is in error. There will be an appeal -- but this is a narrow opinion, an opinion about the standards for an injunction.

In the mean time, Trump still must articulate why Flores doesn't apply to the would-be asylees in question. And it does. So this is mostly. . . a nothing-burger. And it says nothing about Trump's (unbuilt) wall, despite his false tweets -- of this morning.

More broadly, it is astonishing to me that Trump sends lawyers into courts in this land, to do his bidding -- and the only path to doing his bidding, given the brazen violations of well-settled law he aims for -- is to simply ignore the plain meaning of a statute, and argue that the government is free to treat any one, essentially any way it. . . pleases.

And it is disturbing to me, personally, that these ambitious -- and in many cases, poorly-educated -- lawyers. . . do just that. Liberty University Law is no training ground for the Ninth Circuit or the Supremes. Here's the business end of the dissent, which will ultimately prevail, when the merits are reached -- from an 11 page PDF dissent, just handed down:

. . . .The Government’s argument ignores the statutory text, the Supreme Court’s opinion in Jennings last year, and the opinion of its own Attorney General in Matter of M- S-, less than a month ago. The text of § 1225(b) tells us that § (b)(1) and § (b)(2) are separate and non overlapping categories. . . .

In Jennings, the Supreme Court last year told us explicitly that § (b)(1) and § (b)(2) applicants fall into separate and non overlapping categories. . . . The Government argues that returning § (b)(2), but not § (b)(1), applicants to a contiguous territory would have “the perverse effect of privileging aliens who attempt to obtain entry to the United States by fraud . . . over aliens who follow our laws.” Govt. Brief at 14. In its Reply Brief, the Government compares § (b)(1) and § (b)(2) applicants, characterizing § (b)(2) applicants as “less-culpable arriving aliens.” Govt. Reply Brief at 5. The Government has it exactly backwards. . . .

On to the Supremes; or back to the trial court, on the merits. We await Innovation Law's decision on how it will next proceed. Onward.


Tuesday, May 7, 2019

Oral Argument: Innovation Law Labs... It Did NOT Go Well -- For Trump's Claimed Expedited Removal "Protocol"

I am tardy in posting this oral argument. It runs over 58 minutes. The below is video, on YouTube, of the same audio feed linked here.

Here, Trump tried to trample on the rights of asylees to a hearing, by simply dropping them back in Mexico -- without regard to whether they were Guatemalan, Honduran, or Ecuadorian by birth or residence -- for just a few examples, in violation of 8 USC § 1225(b)(2) -- without asking if they had any "credible fear", of being dumped there.

The Ninth Circuit repeatedly hammered Team Trump about a US Supreme Court case decided last year, Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), that simply negated Trump's supposed "view". They are toast. Stick a fork in them.

An asylee MUST be asked by the government -- if they have a credible fear, if returned. Trump says he alone, unlike any President in a half-century. . . may ignore required law. He says he need not even ask the asylee -- let alone hold the 8 USC § 1225(b)(2) required HEARING:

Now you know. Onward. In almost all cases, Trump is simply a lawless and generally. . . unthinking thug. A wanna' be dictator. We need to impeach.


Monday, May 6, 2019

On Mars, InSight's Hammer/Drill-Bit Will Undergo Two Diagnostic Test Drillings, Tomorrow...

The progress here is intentionally cautious, slow and deliberate, so as not to damage the drilling mechanism, sheathed in a sharply pointed metal container. [My backgrounder from April 2019 is here.] If we bust it -- there is no repair crew to send out.

But progress, this is -- to be sure. One solution may involve using the arm to "bear down" on the outward facing legs, and thus increase friction -- to get the penetration fully underway. But we are still a few weeks from seeing that plan executed.

In any event, here is the latest, from our friends on the German contractor team:

. . . .Dividing the [diagnostic] hammering. . . allows a check during what space engineers call a “ground-in-the-loop” to see that nothing unexpected has happened. Unfortunately, there have been delays, first because of a temperature issue and an second an issue with the arm, both related to cautious safety regulations.

But we should be able to do the first round of what we call diagnostic hammering. . . tomorrow. It will be interesting to see whether we see movements of the tether. . . .

Onward, whilst smiling at the notion of more new life -- in the palace. It is indeed I think, the Infinite's opinion that this world should. . . go ever. . . onward.


Some Life-Affirming News... Grin!

Even though the path to this eventual outcome remains highly unlikely, the news has me grinning, ear to ear -- one day, there may be a right-wise. . . brown King of England. . . smile. . .


Friday, May 3, 2019

A Thousand Dead As Of Tonight, In DRC From Ebola, "The Fire This Time"

Ahem. A sad mile-marker, to be sure.

Here's the latest from the AP:

. . . .Ebola deaths in Congo’s latest outbreak are expected to exceed 1,000 later on Friday, the World Health Organization announced, as attacks continue on health workers trying to contain the virus’s spread.

The outbreak that was declared in eastern Congo in August is already the second deadliest in history, and efforts to control it have been complicated by a volatile security situation and deep community mistrust.

Ebola treatment centers have come under repeated attack, and a Cameroonian epidemiologist working with WHO was killed last month during an assault on a hospital in Butembo city at the outbreak’s epicenter. Another attack on Thursday in Butembo was repelled, said Mike Ryan, WHO’s emergencies chief. . . .

Onward -- we will keep you informed. Even so, trying to smile a bit, with a busy weekend ahead -- cheering at an Olympics qualifying Tri- race in Northern Wisconsin early Sunday, and baby girl sleep over Saturday night. . . after workouts and bike rides.


Thursday, May 2, 2019

Give All His "Dark Money" Donations Back, Mr. Trump: Insys Founder & Chairman Guilty, On RICO "Prescription Opiates Bribery" Felonies.

In view of his "very substantial non-US assets, and thus, risk of flight", house arrest has already been denied -- by the able US DC Judge.

His hearing is still underway, but he is likely to be taken into custody tonight -- instead of leaving the US DC courtroom in Boston, in a few moments. Here's the latest, from Forbes:

. . . .After more than three weeks of deliberation, a federal jury has found Insys Therapeutics founder John Kapoor, as well as three former Insys managers, guilty of racketeering conspiracy.

The trial against former billionaire Kapoor and four other company executives began in January and lasted into April. Insys managers Michael Gurry, Richard Simon, Sunrise Lee were also convicted. The executives were accused of conspiring to bribe clinicians to prescribe the company's fentanyl spray medication off-label. The jury began deliberations over three weeks ago on April 8. . . .

And as I said last week -- Trump ought to return all the "dark money" he took from this RICO a-hole. I'm off, for a walkabout in the rolling Spring fog, here -- writ, as ever. . . in water [borrowing. . . from William Butler Yeats].


Wednesday, May 1, 2019

Q.: Will William Barr... End Up As John Mitchell Did?

After today's lunacy before Congress. . . .

He just.. . . might -- disgraced; disbarred. . . and perhaps, jailed.

Good evening, America. Look at 1973-74, to see what comes next. This is all so. . . familiar. May not echo, but it. . . rhymes. . . indeed. [And that is. . . post no. 5,000 here.] G'night.


Tuesday, April 30, 2019

In Line Quarter At Kenilworth; As Expected, Keytruda® Still Besting Optivo®... But Headcount Cuts Afoot.

I understand. I do. But it doesn't make it any less. . . bitter.

Post a solid Q 2019 -- showing pembrolizumab is beating the BMS immuno-oncology agent, in sales revenue rather handily. Then, slip in a $1.2 billion charge, to (among other things) close facilities and pay severance to what? 600 to 1,000 workers (Merck hasn't said -- but that's my guess)? Who really knows. I get it -- but I don't like it (per Bloomberg, this morning):

. . . .Merck will close some plants and shed workers as part of a cost-cutting effort over the next several years. Because of the cuts, the company said it expects to take a charge of $800 million to $1.2 billion by the end of 2023. . . .

Onward, a little downbeat in truth, knowing that some fine science jobs are (once again) on the line.


Monday, April 29, 2019

A Most-Unusual Black Hole -- One That Wobbles Like a Top, Slowing Down...

V404 Cygni Black Hole Animation from ICRAR on Vimeo.

That is some very well-rendered CGI. Here's this morning's Gizmodo story, and a bit:

. . . .V404 Cygni is a system 8,000 light-years away, consisting of a black hole sucking up matter from a star. On June 22, 2015, scientists working on 10 radio telescopes around the world measured an outburst of jets from the system over the course of four hours, probably caused by the black hole eating matter very quickly -- a cosmic feast. . . .

The jets appeared to swing around by 30 degrees (one-twelfth of a pie) in the sky during that period, leaving behind clouds of plasma, according to the paper published in Nature.

“We’re getting this jet precession much more [rapidly] than we ever thought before,” study author Gregory Sivakoff, an associate professor in physics at the University of Alberta, told Gizmodo. . . .

The star and the disk of matter are slightly misaligned from the black hole’s spin direction, so it produces the wobble. The astronomers then observe the result -- the spinning jets. . . .

Now you know -- and these sorts of celestial events must be just. . . stupefying in real life, could we ever travel out 8,000 light years, to be a witness, with our own eyes. Onward; have a great Monday evening. . . I'm off.


In Response To US Measles Outbreaks -- Merck's MMR Vaccine Production Runs Dialed Up...

This is just a quick Monday morning squib, to note that (likely at its Durham, NC facilities, and to a lesser extent at WestPoint, PA) Merck is increasing its scheduled runs of the three way vaccine combo which includes measles immunizers. The other two are. . . Mumps and Rubella.

In 2010, Merck stopped making a stand-alone measles vaccine, for the simple reason that kids are almost always given all three, and it is clearly more economic to provide one vial, one fill, and one shot -- rather than three, three and three.

Here's the bit, from, this morning:

. . . .Merck, the sole U.S. provider of the MMR vaccine, has "taken steps to increase U.S. supply" of the vaccine due to the current measles outbreak. Adults who were vaccinated against the virus decades ago may need a new dose depending on when they received the shot and their exposure risk, according to public health experts.

Anyone vaccinated between 1963 and 1989 would likely have received only one dose, with many people immunized in the earlier years receiving an inactivated version of the virus. . . .

Personally, I am. . . immune. For my part, I will not be re-upping, as I contracted them, as a lil' kid -- can't get 'em again -- and I was vaccinated -- right before kindergarten.

Oh -- and since it is Superhero Day here in the US, The above masthead makes mention of. . . mine -- at least a dozen, plus all the best of NASA, below -- and the original seven Mercury gents too. Onward, on a rainy Monday.

Comparing Pfizer, Merck And Amgen: Q1 2019 Lobby Spend & Trends...

As ever, we provide a quarterly tally of the lobby spend of three that most interest us, in the multinational public company life sciences sector, as 2019 First Quarter figures are now available at And we now have a four year trend line to display at right.

Pfizer continues to outspend the other two, even adjusting for its proportionately larger market cap. However, with Mr. Read's transition away from the lead role there, I would expect the spend to tail off a bit, for the full year 2019. [We may already be seeing evidence of that, in the nearly half-million dollar decline, from 2018, in 2019 Q1.] And so, below is some of what Pfizer spent on, in the beginning of the year 2019:

. . . .Drug Pricing, Biosimilars, Drug Shortages, Out of Pocket Costs, Value Based Arrangements, Rebate Reform. . . .

Medicare Part D, Coverage Gap. . . .

Comprehensive Corporate Tax Reform, FY 2020 Appropriation Bills. . . .

Creates Act. . . .

U.S.- Japan Trade Negotiations, U.S.-E.U. Trade Negotiations, China Trade Negotiations, Canada IP/Trade Issues, APEC, OECD, NAFTA/USMCA, Brazil Trade, Chile IP/Trade, Argentina, PAC-DBIA, India Trade, Turkey Trade . . . .

Now you know. Net, net -- Pfizer will be better served with ole' Ian. . . gone. Onward to a warmer, (non snowing) Monday morning, then. . . . grinning.


Friday, April 26, 2019

Instead of Two Years, Trump Has... Six Months: Up To 47,000 Children To Be FOUND -- Per The Able USDC Judge Sabraw

The able Judge Dana Sabraw held a status conference late yesterday in San Diego. [Jut one of my prior backgrounders is here; re-running the original victory graphics.]

When the dust settled -- and it all was over -- he entered an order agreeing that two years is entirely too long to wait, to reunify the remaining perhaps 47,000 children. Now we will know, by October 25, 2019 -- just exactly how many there are, still being held against their will (under applicable federal immigration law, these minor children are presumed not to have consented to being taken from their parents/guardians).

So, here is the plaintiffs' request, and the Judge's order (in full, in green):

. . . .[The plaintiffs requested:]

. . .In the interest of compromise, however, Plaintiffs propose that Defendants substantially complete the identification process within three to six months. Commander White stated at Monday’s meeting that he hoped the task could be completed in far less than 12-24 months and closer to the 3-6 month time-frame proposed by Plaintiffs. Defendants have nonetheless stated that they do not agree to a fixed deadline and want to maintain the 12-24 month time-frame.

Plaintiffs believe that the firm 14 and 30-day deadlines set by the Court during the initial post-June 26 reunification process was critical to the completion of that task, and that had Defendants instead been able to propose their own time frame, the task would have taken considerably longer. Indeed, there can be little doubt that Defendants would not have placed themselves under those 14 and 30-day deadlines. Accordingly, Plaintiffs respectfully request that the Court set a firm deadline of 6 months, but also urge Commander White to finish the task well before 6 months. . . .

Judge Sabraw just ordered:

. . . .As indicated during the conference, the Court orders that the Plan be completed in six months, or by October 25, 2019. A further status conference shall be held on May 17, 2019, at 1:00 p.m., with a Joint Status Report to be filed on or before 3:00 p.m. on May 16, 2019. Signed by Judge Dana M. Sabraw on 4/25/2019. . . .

Now you know. Onward, smiling -- with adult kids in town, to enjoy my weekend.


More Disheartening News, On The DRC 2019 Ebola Front...

While the vaccinated will -- in the next few days -- surpass the 100,000 milestone marker, and the Merck candidate is still showing over 97 per cent efficacy, there is the real and increasing danger of this outbreak becoming nearly as bad as the 2013-2014 version. Local unfounded superstitions, along with multiple "hot-spot" armed conflicts -- in the affected cities, are exacerbating it all -- and are decidedly unproductive, in pro-actively addressing public health / epidemic containment.

Here is the University of Minnesota's esteemed SIDRAP update, on it all:

. . . .Yesterday, the Associated Press reported that some clinicians in the region are threatening to strike because of recent attacks. Yesterday in Butembo nurses and doctors dressed in white marched to city hall to give a memorandum to the mayor asking for more protection. . . .

. . .Yesterday and today, the DRC recorded 20 new Ebola cases, including 10 deaths -- five that took place in the community, which raise the risk of disease spread.

The outbreak totals now stand at 1,373 cases, of which 1,307 are confirmed and 66 are probable. Officials have confirmed 890 deaths, and 248 suspected cases are still under investigation. . . .

We will remain hopeful on this sunny Spring Friday that the "fire this time". . . is soon quenched. But we will prepare for it to get worse, before it gets better.