Category: Uncategorized

This Sixth Cir. Opinion Ignores Controlling Supreme Court Precedent On The Meaning of The Term “On The Basis of Sex”. On To The Supremes.

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That cramped, craven Tennessee “law” — the one that purports to deny medical care to only one sub-class of genders — as a purely legislative creature, and in addition, invidiously invade the physician patient relationship… will ultimately fall.

And the Sixth Cir. has ignored Justice Gorsuch’s latest controlling opinion (6-3) on the matter, in the process of coming to a contrary conclusion. So some time next summer, the Supremes will strike the law and this errant opinion.

For now, we will quote the dissent — that understands the actual black letter federal law very well:

…[W]hen a fundamental right or freedom from discrimination is involved, experimentation has no place. “The very purpose of” our constitutional system “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” W. Va. St. Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). Our “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Id. Similarly, “[n]o plebiscite can legalize an unjust discrimination.” Lucas v. Forty-Fourth Gen. Assemb., 377 U.S. 713, 736 n.29 (1964) (citation omitted).

Tennessee’s and Kentucky’s laws tell minors and their parents that the minors cannot undergo medical care because of the accidents of their births and their failure to conform to how society believes boys and girls should look and live. The laws further deprive the parents — those whom we otherwise recognize as best suited to further their minor children’s interests — of their right to make medical decisions affecting their children in conjunction with their children and medical practitioners. For these reasons, I dissent….

Now you know. Onward, just the same. These conservatives think simple state “laws” may step over the top of the Fourteenth Amendment’s guarantees to all the people. They may not.

Smiling into a CU v. USC weekend, midday tomorrow. Go Buffs!

“A Real Close… Shave” Completed, Yesterday — As Parker Zipped Close In, On Our Home Star, “Sol”…

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This is just. . . outstanding.

First rate engineering — and solar science. All in one blurry-fast lil’ package! It is travelling, when closest to our home star at almost 400,000 miles an hour. Here’s the latest — from the Parker team, at NASA, and the Johns Hopkins Applied Physics Labs:

…NASA’s Parker Solar Probe completed its 17th close approach to the Sun on Sept. 27, 2023, breaking its own distance record by skimming just 4.51 million miles (7.26 million kilometers) from the solar surface.

Set up by a gravity-assist flyby of Venus on Aug. 21, the close approach (known as perihelion) occurred at 7:28 p.m. EDT, with Parker Solar Probe moving 394,736 miles per hour (635,266 kilometers per hour) around the Sun – another record. The milestone also marked the midway point in the mission’s 17th solar encounter, which began Sept. 22 and continues through Oct. 3….

The spacecraft will transmit science data from the encounter – largely covering the properties, structure, and behavior of the solar wind as it launches off the Sun – back to Earth from Oct. 4 – 19….

Now you know, and this is the fastest moving human made object — in history, by a wide margin. And so, we are beaming at all the twisting, speedy lil’ packages… still out there, in the night… making history. All of them — in touch and out — all wonders, in their own ways. Smile.

नमस्ते

While We Await Appeals, In The Fifth — The Trial Court Has Consented To An Added Count In The Rio Grande/Eagle Pass Razor Wire Case…

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The newly amended complaint was just filed by the Biden Administration, this afternoon, in dusty, scorching hot West Texas. It blasts a gaping hole in Gov. Abbott’s and Texas GOP’s little tug-boat, well below the water-line. [All of which is deliciously ironic, as about 150 years ago, Hinderaker’s ancestors over-ran this country, illegally taking it from native peoples — and this very day, he decries the fact that more brown people are having babies than his white ancestors / and descendants — claiming “his” country is being stolen from him. It is precisely the opposite, son. Indigenous descendants of the Aztecs and Mayans… are reclaiming their lands, from you. Idiot.]

That is, as amended, the complaint now explains forcefully that independent of all else, Gov. Abbott has violated a supreme US / Mexico treaty, one made at the end of the Mexican/American War in 1848 — that prevents either nation from doing anything that… “may” impede the waterway. No need to show it actually does; just prove it “may impede” — and Texas and Abbott… lose.

Of course, Abbott’s entire goal was to impede foot traffic through the waterway. And Mexico as well as the federal US government may force him to remove it. That is as plain as day. So here it the red-line — and the operative new bits:

…The Supremacy Clause of the Constitution directs that: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2…. The 1848 Treaty, known as the Treaty of Guadalupe Hidalgo, ended the Mexican/American War, with Mexico ceding certain of its territory to the United States in exchange for payment of millions of dollars….

Accordingly, under the 1848 Treaty, the United States “shall” not construct anything in the Rio Grande that “may” impede or interrupt navigation on the Rio Grande River in any way without Mexico’s consent. This free-navigation requirement is binding and self-executing.

The 1848 Treaty requires that navigation on the Rio Grande “shall be free and common to the vessels and citizens of both countries; and neither shall, without the consent of the other, construct any work that may impede or interrupt, in whole or in part, the exercise of this right; not even for the purpose of favoring new methods of navigation.” 1848 Treaty, art. VII, 1848 WL 6374, at *4….

The free-navigation requirement of the 1848 Treaty is self-executing and thus binding on Texas…. The Floating Barrier constructed by Texas is “a work that may impede or interrupt, in whole or in part, the exercise” of the right of “the vessels and citizens of both countries” to navigate the river. 1848 Treaty, art. VII, 1848 WL 6374, at *4. Texas’s placement of the Floating Barrier in the Rio Grande, without the permission of Mexico, is inconsistent with the 1848 Treaty and is preempted….

Yep — Texas Gov. Abbott… just got his hind parts… handed to him. Hilarious. Game. Set. Match. Again.

Out.

नमस्ते

Hinderaker — Supposedly A Fan Of Primary Education… Ought To Forget The “Hoodies” Rants.

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Well… churlish Johnnie is back to complaining that Mr. Fetterman wears hoodies. [This while his leading GOP candidate for 1600 Penn. in 2024… is liable for over $300 million in proven frauds, in NY state — and the revocation of his business licenses, there — based on that fraud. But Hinderaker is on the fainting couch about… a hoodie, in the Senate?!]

Damn.

As we’ve said, several times — John cares more about what someone wears, than what they stand for, apparently. Hinderaker claims to support universal primary grade education, in the US. Mr. Fetterman has introduced legislation to end the shameful practice of “school lunch debt” hounding.

The idea here is that kids of limited means need not be shamed for not being able to afford a hot lunch. Nutrition, as endless parades of studies have conclusively proven, is the first building block to life-long learning.

John ought to back Mr. Fetterman’s measure to end the shaming and hounding of kids and their parents for lunch money “debts”. That’s over 30 million kids nationwide, John.

Kids have to eat, and eat well — to be ready to learn, John.

Who cares what Mr. Fetterman is wearing when he proposes such legislation?

What matters… is he’s doing something to improve education. You?

You and your minions want to ban and burn books.

Charming. Clean your own house first, moron: MGT in particular.

Merck Only Now Admits What We All Knew: You “Cannot Fight City Hall” — When It Is ALSO Your Largest US Customer…

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Condor predicts this is simply the slow dance at an “old school” high school prom — toward an ultimate dismissal of these strike suits — against these very large customers — like HHS and CMS, and the VA. The suits are very dubious as a matter of law, and to be certain… suing your biggest customers, on the grounds that you won’t even sit down, to “talk about” prices… is never a smart business move. Not a good look.

In any event, here is the latest, from Endpoint News’ fine reporting — do go read it all (behind a paywall, though):

…Merck said on Thursday that it will participate “under protest” in the first round of price negotiations with the Centers for Medicare and Medicaid Services for its type 2 diabetes treatment Januvia (sitagliptin).

The company is the fourth to announce that it will agree to the IRA’s Medicare negotiations process, ahead of the October 1 deadline….

Just as we predicted several months ago, when the strike suits were first filed. Yawn. And… onward!

नमस्ते

Merck’s Newly-Acquired Sotatercept Wins FDA Priority Review — As Breakthrough Therapy, For Blood Vessel Maladies…

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Based on very favorable study results we last detailed on September 11, Merck is now on a fast track to FDA approval for the first candidate out of the gate, via its $11.5 billion Acceleron acquisition, of late 2021.

By rule, then FDA should announce its approval/non-approval decision — on or before March 26, 2024 (though in such cases, it is nearly a 95 per cent probability — for approval).

Once again, this show-cases Rahway’s savvy as a deal doing pharma concern. Well played — and here is the latest, from Reuters:

…Merck’s application is based on data from a late-stage study in which sotatercept, combined with a background therapy, helped patients with pulmonary arterial hypertension (PAH) to walk about 40.8 meters more in six minutes….

Sotatercept could also be the first treatment of its class, which targets a type of protein called activins that lead to higher levels of follicle-stimulating hormone associated with the disease.

J.P. Morgan analyst Chris Schott had estimated the therapy to reach peak sales of $3 billion to $4 billion.

Merck had said it expects PAH to be a roughly $7.5 billion market by 2026 when it announced the Acceleron deal….

Now you know — but no order from the Supremes yet — on the Doughty mess out of Monroe, Louisiana to the Fifth Circuit. For its part, the Fifth entered an order staying all of Doughty’s July 4 ruling until further order. So, maybe the Supremes will rely on that, and not enter a formal extension of their own stay. We shall see. Onward.

नमस्ते

[U: AMZN Presser / Response] Opinion: The FTC And State AGs Are Likely To Prevail, In The Antitrust Suit Against… Amazon. You Heard It Here First.

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Updated on 09.29.2023 @ 4 pm EDT: For whatever it is worth, here are the claims Amazon asserts, as to why the FTC’s action is unwise. Notably, this is press spin — not legal analysis — and Amazon offers no legal theory to suggest the FTC is wrong on the law, or the facts. Now you know. End, updated portion.

This will serve as a bonus bite, at Amazon, for September. We will have AMZN labor related matters news, early in the new month of October. Count on it.
[This could cost Amazon… billions, in damages — and force the company to democratize its listing and fufillment services, much the way the dominant telephone company was broken up — into the “Baby Bells” two generations ago now.]

For now, we see a strong resurgence in the federal trial courts around the country (consider Martin Shkreli’s antitrust loss, just two years ago now), and. . . a willingness to apply the Sherman and Clayton Acts to conduct that (at least previously, under Ronald Reagan, at its zenith) was just. . . largely shrugged off. Here, in Condor’s opinion, Amazon is pretty clearly engaging in lawless predatory behavior in a market it plainly has come to… dominate. Here’s a bit — and the full complaint at law:

…The FTC and states allege Amazon’s anticompetitive conduct occurs in two markets — the online superstore market that serves shoppers — and the market for online marketplace services purchased by sellers. These tactics include:

Anti-discounting measures that punish sellers and deter other online retailers from offering prices lower than Amazon, keeping prices higher for products across the internet. For example, if Amazon discovers that a seller is offering lower-priced goods elsewhere, Amazon can bury discounting sellers so far down in Amazon’s search results that they become effectively invisible.

Conditioning sellers’ ability to obtain “Prime” eligibility for their products — a virtual necessity for doing business on Amazon — on sellers using Amazon’s costly fulfillment service, which has made it substantially more expensive for sellers on Amazon to also offer their products on other platforms. This unlawful coercion has in turn limited competitors’ ability to effectively compete against Amazon….

Yes — we intend to cover it, and cover it… closely. One cannot abuse one’s dominant position in a given US marketplace, under long standing federal law. So. . . onward, grinning into the warm night.

नमस्ते

Billingsley… Is Utterly… Clue Free. Y A W N.

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So… the malign old coot… today complained that the FBI failed to prevent the Covenant (Tennessee) mass shooting inside an elementary school. [He made no such complaint, about failing to prevent the Proud Boys at DC on 01.06.21. Gee — I wonder why(?). Not really.]

He further complained, unwittingly revealing his true agenda, that he hadn’t been allowed to read the rantings of the disturbed and evil perpetrator, one using an AR-15.

His real agenda is to shut up the Tennessee 3, who seek accountability from hard right nuts like him — and the NRA lobbyists — who promote allowing anyone to get an AR-15. In fact that shooter bought it lawfully, because of how weak local Tennessee law is on the topic.

What he seeks, at bottom, is to label anyone with gender dysphoria as a potential mass murderer. That’s why he wants the manifesto.

Until the FBI and state and local police have completed their investigations (among other things, seeing who might have encouraged / tipped off the shooter) — old Billingspuss has zero right to read it.

Z E R O.

Sit down and shut up Lloyd. Your agenda is transparent and malignant.

Out.

By 5 PM EDT, Tonight — The Supremes Will Likely Weigh In To Take The Doughty Nonsense Off The Table…

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Somehow, the Fifth Circuit managed to enter an order that both contradicted its prior decision on the merits, and effectively contradicted its own immediate mandate, on the decision. That mandate made it immediately appealable to the Supremes, which the federal government did… within a day. [This all deeply impacts how Elon Musk might run X (formerly known as Twitter) in the future — as well as FB, Instagram, TikTok, Tangerine’s ironically named Truthsocial.com, Gab.com and even goofy Parler.]

The Supremes have now twice delayed a decision on taking the case, as the nine needed until 5 pm tonight to finish conferring on the matter (it seemed).

Overnight, the State of Louisiana filed papers in the Fifth Cir. it marked as viewable only by counsel in the case. These papers are filed publicly, though — in the Supremes, per long standing black letter federal law. From those, here is how the US Solicitor General describes where we are, in the ball of tangled string the Fifth Cir. made of it all:

…Given the current posture of the case, the unreasoned nature of the Fifth Circuit’s order, and the uncertainty about that order’s intended effect, the government will not develop at length its additional arguments explaining why any extension of the injunction to cover the CISA and State Department defendants, or to reach activities related to the Election Integrity Project or related entities, would be unwarranted and improper — as the Fifth Circuit itself previously held, see Appl. App. 238a. The government is of course prepared to submit further briefing on those issues if the Court requests it….

The Fifth Circuit’s unexplained grant of panel rehearing does not purport to modify its prior judgment; the court lacked authority to modify its judgment without recalling its mandate; and the issues decided in that judgment continue to warrant this Court’s review. Whether or not the Court grants certiorari immediately, however, the government respectfully submits that the irregularity of and additional uncertainty caused by this most recent development provide powerful additional reasons to stay the district court’s preliminary injunction in its entirety….

As I say, we expect clarity from the Supremes by tonight, by written order. Onward, grinning at the lunacy from some (far right) corners of the Fifth.

नमस्ते

[U: Full Order Below!] Tangerine’s NY Fraud Trial Was Just Materially Narrowed — Because He’s Already Lost — On The AG’s Top Charge: Fraud In Overstating His Assets: Judge Engoron

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UPDATED — here’s the full order (15.5 MB) — and it is a humdinger! Read on! End updated portion.

Not at all surprising, as NY law here is clear — and Tangerine’s own tax and loan applications filings proved his liability, from his own pen.

I am still waiting to see the full 35 page opinion and order appear on the public docket, at the NY Supreme Court. But Tangerine’s time as a serious candidate… is very nearly now… at an end. Bank on that. Here’s the breaking NY Daily News, reporting a “still-developing” story:

[Opinion:] …The court takes judicial notice that the Trump Tower apartment in which Donald Trump resided for decades (the “Triplex”) is 10,996 square feet. Between 2012 and 2016, Donald Trump submitted SFCs falsely claiming that the Triplex was thirty thousand square feet, resulting in an overvaluation of between $114 million and $207 million. The misrepresentation continued, even after defendants received written notification from Forbes that Donald Trump had been overestimating the square footage of the Triplex by a factor of three….

[NY Daily News:] …Donald Trump was found liable for fraud Tuesday in the New York attorney general’s sweeping case against his family real estate empire – a major setback for the former president.

In a 35-page order, State Supreme Court Judge Arthur Engoron partially granted state AG Letitia James’ request to rule on her top fraud claim in the $250 million lawsuit.

Engoron found Trump, his sons, Eric and Don Jr., and multiple Trump Organization entities liable on the chief claim, which alleges they lied about the value of company assets by hundreds of millions of dollars for a decade and repeatedly used the fake numbers in business transactions.

Engoron also granted an AG request to impose sanctions on Trump, his co-defendants and their attorneys for repeatedly filing already-rejected legal arguments….

Couldn’t happen to a nicer guy. Onward.

नमस्ते