Author: condor

Based On These US BP Photos, The US Will Win An Injunction Against Texas — This Is A “Structure” In A Federal Waterway…

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Over the last two days, the US government has moved in federal court, for an injunction against Greg Abbott’s lawless floating razor wire barrier — now of over a fourth of a mile in length(!) — in federal water.

Significantly, that barrier is firmly anchored, at about every thirty feet, with spikes and pylons, driven deep into the riverbed. This is without doubt… a “structure” directly prohibited by 33 USC §403, which is now impeding a federal waterway.

As such, the statutes are crystal clear: the Army Corps of Engineers may properly be instructed to immediately destroy it. And they will, in very short order — under a federal court order.

Until they arrive, though — the Administration will have an injunction against any further Texans’ lawlessness, as contemplated by 33 USC §403, et seq..

Do stay tuned — these photos are from affidavits filed with the motion for injunction, all taken by US Border Patrol agents, by drone.

Now you know. What an evil lil’ cretin that Abbott is.

Team Biden Has Answered — As To Why Judge Doughty’s July 4 “Injunction” Is… A Mess.

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This fine 65 page brief was just filed tonight, in the Fifth Circuit Court of Appeals, and it will ultimately be the argument that wins the day — either here, or in the Supremes.

It masterfully dissects most of the manifold errors Monroe, Louisiana’s Doughty made. [And that’s why it takes 65 pages. Heh!] Here’s a bit:

…The district court’s 155-page opinion contained not a word of justification for the breathtaking scope of relief. Even in response to the government’s motion for a stay pending appeal, the district court’s only comment on the injunction’s scope was to suggest that including entire agencies was appropriate, even if some subcomponents had nothing to do with the challenged conduct, because agencies could otherwise “simply instruct a sub-agency to perform the prohibited acts and avoid the consequences of an injunction.” ROA.26658. It is not possible for this Court to defer to the district court’s exercise of its equitable discretion absent an explanation of the court’s reasoning. See, e.g., Geier v. Sundquist, 372 F.3d 784, 792 (6th Cir. 2004) (“Absent some indication of how the district court’s discretion was exercised, we have no way of knowing whether that discretion was abused.”). In any event, there is nothing the district court could have said to justify an injunction so manifestly disconnected from any harm (much less any forward-looking harm) to plaintiffs.

At a minimum, therefore, this Court should vacate the injunction to the extent it restricts government communications not specifically targeted to particular content posted by plaintiffs themselves. Such an injunction—which would leave the government free to communicate with platforms about specific posts by others or about any general category of content — would avoid burdening a vast universe of government actions lacking any connection to plaintiffs in particular….

[O]ne of the central constitutional duties and prerogatives of the President and his senior officials is to speak about harms in the world and ways of addressing those harms, and Executive Branch officials must have latitude to do so forcefully at times. But the injunction subjects many such communications to a risk of contempt. Consider, for example, a hypothetical statement from the White House podium that the President denounces misinformation about a recent natural disaster circulating online and urges platforms not to disseminate those falsehoods. In opposing a stay pending appeal, plaintiffs were admirably forthright in explaining that they would regard such a statement as violating the injunction. Opp. 24. But the prospect of contempt for such a statement flies in the face of a long history of presidential attempts to persuade members of the American public, including American companies, to act in the national interest. See supra p. 20. Even the potential for the injunction to be construed as limiting the communication of the President’s views regarding issues of public consequence — and for a federal district court to superintend those communications — raises grave separation-of-powers concerns….

What a wack-job of a 105 page opinion that Doughty burped out, on the Fourth holiday, no less — this year. It will be stricken — and dropped into the ash-bin of US History.

Out.

In Which Steve Hayward Gets It… Completely Wrong, About Today’s Tigar Opinion. YAWN.

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Steve unceremoniously burps — and then says (in error) it is a “runaway” judiciary problem.

Hah!

Precious. I’m old enough to remember when Steve actually wanted the plain statutes to be read, and enforced, just as written.

That’s all the able USDC Judge Tigar did today — he did it to Tangerine’s lawlessness, and he did it to Mr. Biden’s slightly altered version, this afternoon.

See my priors here. This is ALL about it not mattering where you cross, and whether the statutory scheme (in place for three decades, minimum) creates certain due process rights — for putative asylees.

It does.

Full stop. They have the right — RIGHT! — to cross by waterway, or overland, anywhere — even in the wilderness.

So, it ALSO means… Greg Abbott loses, Steve. That’s all. Judge Tigar already beat Trump’s appeal, on the same grounds, three years ago.

He will prevail, again. 8 USC §1158(a) means what it says.

Out, dummy.

East Bay IV: In Which The Able USDC Judge Tigar Says “Congress Meant What It Said” — Crossing ANYWHERE, And Seeking Asylum… Confers Due Process Rights.

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It is timely that the able Judge published his ruling this very afternoon — and perhaps not coincidental, since Texas (and Gov. Abbott) argue that if one doesn’t cross at a port of entry, one cannot claim our treaties’ protections. Poppycock. That has never been the law. Ever. [Thus, Abbott’s floating razor wire stunt is a violation of prospective asylees’ due process rights, and under color of state law… and so, lawyers will win civil damages from him, and Texas, for this.]

As we said back in May of 2023, this is but an echo — of a similar Trump attempt that the able judge invalidated, and ultimately the Supremes agreed with Judge Tigar. So it is unsurprising that Mr. Biden’s similar measure too now falls. [It disappoins me that he tried this — and I said so, in May, right here.] In any event, here’s the 35 page final opinion in full — just released to the public docket; and a bit:

…Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with Section 1158. The Rule effectively conditions asylum eligibility on whether a noncitizen qualifies for any of three exceptions — presenting at a port of entry, having been denied protection by another country in transit, and having parole-related travel authorization — or can show exceptionally compelling circumstances. . . .

The agencies can only condition asylum eligibility based on these factors if doing so is consistent with Section 1158. Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158. Under binding Ninth Circuit precedent, conditioning asylum eligibility on presenting at a port of entry or having been denied protection in transit conflicts with the unambiguous intent of Congress as expressed in Section 1158. Entry V, 993 F.3d at 671 (“[T]he [Entry] Rule is substantively invalid because it conflicts with the plain congressional intent instilled in [Section] 1158(a), and is therefore ‘not in accordance with law.’”) (quoting 5 U.S.C. § 706(2)(A)); Transit V, 994 F.3d at 976 (“We hold, independently of Chevron, that the [Transit] Rule is not ‘consistent with’ [Section] 1158.

We note, however, that we would come to the same conclusion even if we were to apply Chevron, for the Rule is contrary to the unambiguous language of [Section] 1158.”). Section 1158(a) permits noncitizens to apply for asylum regardless of whether or not they arrive at a designated port of entry; a rule that conditions eligibility for asylum on presentment at a port of entry conflicts with Section 1158(a). Entry V, 993 F.3d at 669–70. The safe-third-country and firm-resettlement bars, 8 U.S.C. § 1158(a)(2)(A), (b)(2)(A), “specifically address[] the circumstances in which an alien who has traveled through, or stayed in, a third country can be deemed sufficiently safe in that country to warrant a denial of asylum in the United States”; conditioning asylum eligibility on having been denied protection in transit is not consistent with these bars….

Now you know — and Judge Tigar will be vindicated, again, on appeal. The defendants have already appeal to the Ninth Circuit. But they will… lose. Again. Onward.

नमस्ते

Get A Load Of Abbott’s Written Admissions: He’s Made The Rio Grande MORE Deadly!

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In a grandstanding piece of lying partisan political chicanery, Greg Abbott made lots of admissions to President Biden, overnight. Admissions against interest. Here they are in full, and a bit of the worst of them:

…Two years before Texas deployed the [razor wire] barriers, and a year before it deployed concertina wire, a United Nations agency declared that the border between the United States and Mexico [Condor notes: that is a lie — those were NOT Rio Grande crossings — most were closer to California or New Mexico, overland] is the deadliest land crossing in the world, with 728 migrant deaths recorded in 2021….

Before Texas took the action about which you now complain, hundreds of migrants drowned in the Rio Grande River trying to cross the border illegally. [Confidential note to Abbott, from Condor: if they are asylum seekers, they possess a treaty GUARANTEED right — that their crossing is LAWFUL wherever it occurs, under long settled US law (on waterways, or overland) — so his razor wire is lacerating people, solely for exercising a right guaranteed by international law.]

Before Texas took the action about which you now complain, 53 migrants who illegally crossed [see above prior note to Abbot, again] the border died in the back of an 18-wheel tractor trailer near San Antonio.

Before Texas took the action about which you now complain, thousands of Americans lost their lives to the fentanyl that pours across our border daily [Confidential to Abbott: you cannot establish that the majority, or even a portion, of the fentanyl in the US is arriving from Mexico — — let alone that it is coming in via the Rio Grande.]….

So — Abbott preposterously says his razor wire “cares about life”?! Saves… lives?!

Who is… this idiot?! [And we should note that all the assertions about law, in Abbott’s earlier 2022 letters, that appear at the end of the current one… have been ruled to be errant. That is, courts have uniformly rejected Abbott’s claims about immigration law — even in the Supreme Court. So… yes, he’s a grandstanding idiot — maiming and killing people with a clearly treaty-guaranteed right to cross, by waterway.]

नमस्ते

The Feds Will Win Immediately Here: No State (Cough! — Texas) May Erect A Razor Wire Barrier On Federal Waterway…

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At least, not without official federal permission. And the actual floating razor wire barrier clearly violates our international treaties — on treatment of asylum seekers.

That asylum seekers are being lacerated by this inhumane garbage political stunt (Herr Guv. Abbott) is beyond dispute.

That he didn’t ask for approval: likewise beyond dispute — as it would never have been given.

And now, here is the complaint (brought in the name of the United States) in federal court, in West Texas, in full — and a bit:

…The Floating Barrier consists of a string of buoys [wrapped in razor wire] each of which is between 4 and 6 feet in diameter. According to a June 8, 2023, press statement by Governor Abbott, this string of buoys may stretch for at least 1,000 feet.

Defendants do not have authorization from the Corps pursuant to 33 U.S.C. § 403 or 33 C.F.R. § 322.3 for the Floating Barrier or for any associated infrastructure…. Defendants did not seek authorization from the Corps prior to installing the Floating Barrier…. Governor Abbott stated publicly on June 8, 2023, that Texas may seek to build
similar floating barriers within the Rio Grande along the United States-Mexico border in Texas in addition to the one then contemplated, and now constructed, in the vicinity of Eagle Pass, Texas.

Because Texas installed the Floating Barrier without seeking the Corps’ authorization, the Corps and other relevant federal agencies were deprived of the opportunity to evaluate risks the barrier poses to public safety and the environment, mitigate those risks as necessary through the permitting process, and otherwise evaluate whether the project is in the public interest.

Governor Abbott has stated publicly that the Floating Barrier is part of a broader effort called “Operation Lone Star”…. According to Governor Abbott, Operation Lone Star also includes the placement of concertina wire near the U.S.-Mexico border…. With respect to the placement of concertina wire, Governor Abbott has stated: “We aren’t asking for permission….”

This man is an immorally deplorable, cruel and embittered… loser. His MAGA agenda has utterly failed to win broader national support (his mentor, Tangerine, is well on his way to a federal prison), so — as all despots eventually do — he’s turned to human rights abuses, to foment anger and whip up fund-raising support — in his tiny, but apparently loyal to brown-shirts base.

What an ass.

Soon the people of Texas will have to pay for the injuries to asylum seekers, as well as pay the fees of the attorneys bringing suit against Abbott. Of course, he and AG Paxson only ever waste the taxpayers’ money on this garbage — not any of their own.

Damnation.

The German Merck Has Today Published Its FIRST EVER Diversity & Inclusion Report…

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It would be very easy to take up a snipers’ nest / perch here at the open — and ask why it has taken this multinational into the second decade of the 21st Century to even begin to report on progress, on this dimension. And that would be a fair critique. But not where I’ll focus, absent other evidence of bad-faith.

I’ll choose to celebrate the fact that a very old line German company is… trying to do… better:

…In 2021, we reflected — and then acted. We pledged to our people, partners, patients and communities to intensify our DE&I efforts, set bold aspirations, develop solid plans and hold ourselves accountable. In 2022, we completed the rollout of our new strategy and showed that we are on track to achieve our 2030 goals….

While we have always been a diverse organization — present in 66 countries with more than 64,000 employees from 139 nationalities — we recognize that our continued success depends on our ability to build a work environment that champions equity and inclusion worldwide….

“Our world is beautifully diverse — and so is our company. We believe that championing a diverse workforce helps us better understand the needs of our stakeholders, exceed our customers’ expectations, stay economically and socially sustainable and, most of all, drive the kind of groundbreaking innovation that advances human progress….”

— Belén Garijo

Chair of the Executive Board and CEO, Merck KGaA, Darmstadt, Germany….

So… overdue? Indeed — but good news, and kudos, just the same. Onward… to a sunny lake-side bike trek, now… smile.

नमस्ते

Now Continuing The Series… Here Are The Detailed Amgen Q2 Lobby Disclosures…

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This is the companion to last night’s, on Eli Lilly’s lobby spend.

Each of Lilly and Amgen are spending only a fraction of what each of Merck or Pfizer spends — and all of them are eclipsed by a fair distance by… Amazon and Jeff Bezos.

More on that later this week — but Amgen is just under $2 million this quarter. This compares to a slightly increased spend for Lilly over the first quarter. Here are those Amgen details, for Q2 2023:

…Issues related to drug pricing reform; Changes to Public law 117-1769 Inflation Reduction Act; Awareness of implications to patients and research and development of Public law 117-1769 Inflation Reduction Act; S. 113 Prescription Pricing for the People Act of 2023; S. 127 Pharmacy Benefit Manager Transparency Act; HR 830 / S. 1375 HELP Copays Act; HR 485 Protecting Health Care for All Patients Act; HR 1613 to amend title XIX of the Social Security Act to improve transparency and prevent the use of abusive spread pricing and related practices in the Medicaid program; HR 2534 PROTECT 340B Act of 2023; HR 3561 The PATIENT Act; S. 1542 DRUG Act; S. 1967 PBM Act; Issues related to cardiovascular disease awareness and treatment; Issues related to Federal Trade Commission; FDA issues; Issues related to clinical trial diversity; Issues related to patient affordability issues, including copay cards, copay accumulators, copay maximizers, National Benefit Payment Parameters; Biosimilars reimbursement issues, no specific bill; Supply Chain Issues, no specific bill; Issues related to 340B; Issues related to pharmacy benefit managers….

Issues related to drug pricing reform; Changes to Public law 117-1769 Inflation Reduction Act; Awareness of implications to patients and research and development of Public law 117-1769 Inflation Reduction Act; S. 113 Prescription Pricing for the People Act of 2023; S. 127 Pharmacy Benefit Manager Transparency Act; HR 485 Protecting Health Care for All Patients Act; HR 1613 To amend title XIX of the Social Security Act to improve transparency and prevent the use of abusive spread pricing and related practices in the Medicaid program; HR 2534 PROTECT 340B act of 2023; HR 3561 the PATIENT act; Issues related to cardiovascular disease awareness and treatment; Issues related to ESRD; Issues related to asthma and self-administered drug list; Issues related to reimbursement for biologics/biosimilars….

Issues related to corporate and international tax, including regarding Public Law 115-97, Tax Cuts and Jobs Act; Issues related to Puerto Rico; Issues related to OECD negotiations on the taxation of global income; HR 3938 Build it in America Act….

S. 79 Interagency Patent Coordination and Improvement Act of 2023; S. 113 Prescription Pricing for the People Act of 2023; S. 127 Pharmacy Benefit Transparency Act; S. 150 Affordable Prescriptions for Patients Act of 2023; S. 148 Stop STALLING Act; S. 142 Preserve Access to Affordable Generics and Biosimilars; Federal Trade Commission related issues, no specific bill; Issues related to the Patent Act, no specific bill; Issues related to March-In/Bayh Dole, WTO/TRIPS waiver, no specific bill; Issues related to False Claims Act; Issues related to FDA/PTO coordination; Issues related to patent thickets/product hopping….

We still owe you the Amazon disclosures, which may come later this week or early next. Smile…. See last quarter’s Lilly v. Amgen totals (updated the top graphic; it now contains Q1 to Q2 comparisons across all four, for 2023).

नमस्ते

The German Merck Has Today Published Its FIRST EVER Diversity & Inclusion Report…

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It would be very easy to take up a snipers’ nest / perch here at the open — and ask why it has taken this multinational into the second decade of the 21st Century to even begin to report on progress, on this dimension. And that would be a fair critique. But not where I’ll focus, absent other evidence of bad-faith.

I’ll choose to celebrate the fact that a very old line German company is… trying to do… better:

…In 2021, we reflected — and then acted. We pledged to our people, partners, patients and communities to intensify our DE&I efforts, set bold aspirations, develop solid plans and hold ourselves accountable. In 2022, we completed the rollout of our new strategy and showed that we are on track to achieve our 2030 goals….

While we have always been a diverse organization — present in 66 countries with more than 64,000 employees from 139 nationalities — we recognize that our continued success depends on our ability to build a work environment that champions equity and inclusion worldwide….

“Our world is beautifully diverse — and so is our company. We believe that championing a diverse workforce helps us better understand the needs of our stakeholders, exceed our customers’ expectations, stay economically and socially sustainable and, most of all, drive the kind of groundbreaking innovation that advances human progress….”

— Belén Garijo

Chair of the Executive Board and CEO, Merck KGaA, Darmstadt, Germany….

So… overdue? Indeed — but good news, and kudos, just the same. Onward… to a sunny lake-side bike trek, now… smile.

नमस्ते