USDC Judge Watson (In Honolulu) Has Extended His Halt — To A Preliminary Injunction, Tonight…

March 29, 2017 - Leave a Response

Judge Watson is a courageous American hero, and civil rights icon in the making.

We will see if 45 learns from this, or just buries his orange head in the sand.

The Supremes will see Amendment One the way Judge Watson does, of that I am very confident. Here is a bit of the 24 page PDF ruling, tonight — just filed:

. . . .Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), provides the benchmark for evaluating whether governmental action is consistent with or at odds with the Establishment Clause. According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. “Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice.” Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1076–77 (9th Cir. 2010). . . .

The Court determined in its TRO that the preliminary evidence demonstrates the Executive Order’s failure to satisfy Lemon’s first test. See TRO 33–36. The Court will not repeat that discussion here. As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination.

Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.

Significantly, this Court is constrained by the binding precedent and guidance offered in Washington. There, citing Lemon, the Ninth Circuit clearly indicated that the Executive Order is subject to the very type of secular purpose review conducted by this Court in considering the TRO. Washington, 847 F.3d at 1167– 68; id. at 1162 (stating that Mandel does not apply to the “promulgation of sweeping immigration policy” at the “highest levels of the political branches”).

The Federal Defendants’ arguments, advanced from the very inception of this action, make sense from this perspective — where the “historical context and ‘the specific sequence of events leading up to’” the adoption of the challenged Executive Order are as full of religious animus, invective, and obvious pretext as is the record here, it is no wonder that the Government urges the Court to altogether ignore that history and context. See McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005). The Court, however, declines to do so. . . . (“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”). . . .

The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has. The Supreme Court and this Circuit both dictate otherwise, and that is the law this Court is bound to follow. . . .

Well-put. This is clearly headed to the Supremes — unless Mr. Trump accepts that he has lost — completely. And the Constitution means what it says.

I hesitate to mention it, for fear of encouraging any idiot out there — but the able Judge Watson is, in my estimation a civil rights hero, now. It seems he’s been receiving death threats, since his first ruling on the TRO. He now has a large detail of 24-hour duty US Marshals, with him at all times.

Welcome to the bad old 1950s, courtesy of some of Mr. Trump’s more hateful constituents. Ugly — but real freedom comes from courage — and is often. . . hard.

Post Script: I’ve edited the masthead at the main site, to honor Dr. Eyring. He was born in the then-Colonia Juárez, Chihuahua, Mexico (1901); with his family, he became a refugee/immigrant, via a Texas border crossing (1912), later became a US Citizen (1922) and was, at various times in his prodigious life, also disfavored — on account of his religion.

In fact, some respected authorities believe he was overlooked for a well-deserved Nobel Prize in Chemistry, on account of his Mormon faith, in the 1960s. History may not quite rhyme, but it echoes there. . . .


[U] Live Hearing In Hawaii, Today — On Preliminary Injunction — Against “Muslim Ban 2.0” At 3:30 PM EDT

March 29, 2017 - Leave a Response

UPDATED: 03.29.17 @ 10:45 PM EDT: Preliminary injunction ENTERED — new post in a minute. The able Judge Watson has indicated, from the bench, that he will rule by end of day, Hawaii time. I am nearly certain he will enter a preliminary injunction now — sort of a “longer acting version” of the TRO, from two weeks ago. Consider the live-blogging from US News & World Report:

. . .Judge Watson noted that the government said 20 refugees were resettled in Hawaii since 2010.

“Is this a mathematical exercise that 20 isn’t enough? … What do I make of that?” the judge asked [Trump Administration lawyer] Readler.

The government attorney replied that 20 is simply a small number of refugees.

“In whose judgment?” Watson asked.

Constitutional harm exists regardless of the number of people affected or for how long, Hawaii’s attorney general said.

In his arguments, [Plaintiff State of Hawaii AG Office’s attorney] Chin quoted Trump’s comments that the revised travel ban is a “watered down” version of the original.

“We cannot fault the president for being politically incorrect, but we do fault him for being constitutionally incorrect,” Chin said. . . .

Ouch. I’d now expect a nationwide injunction, as of tonight, out of Honolulu. [End, Update.]

In the unlikely event that it begins to look like the able Judge Watson will rule from the bench, at today’s hearing, I will live-blog it.

Otherwise — I’ll fall silent, and rely on MSM accounts. I do not expect any meaningful change in the nation-wide TRO status tonight, local time (just to be clear).

In any event, here is what’s up (lots of MSM outlets have live-bloggers in the courtroom, already this morning — specifically granted court access, by orders entered):

. . . .The Court is in receipt of the parties’ Joint Motion For Entry Of Proposed Briefing Schedule Order For Plaintiffs’ Forthcoming Motion to Convert Temporary Restraining Order to a Preliminary Injunction. Dkt. No. 235.

The Court enters the following briefing schedule: Plaintiffs shall file their Motion to Convert Temporary Restraining Order to a Preliminary Injunction (“Motion”) by 9:30 A.M. H.S.T. on Tuesday, March 21, 2017. The Government shall file its Opposition by 9:30 A.M. H.S.T. on Friday, March 24, 2017. Plaintiffs shall file their Reply by 9:30 A.M. H.S.T. on Saturday, March 25, 2017.

The Court will hold a hearing on Plaintiffs’ forthcoming Motion at 9:30 A.M. H.S.T. on Wednesday, March 29, 2017.

Counsel may participate by phone by notifying Judge Watson’s Courtroom Manager by Tuesday, March 28, 2017 and providing the phone number where counsel may be reached at the time of the hearing. The Court will contact the parties via phone at the time of the hearing. The Court advises that the hearing date/time may be changed, or vacated, upon review of the briefs. Per the parties’ stipulation, the Court’s Temporary Restraining Order (“TRO”) of March 15, 2017 (Dkt. No. 219) shall remain in place until such time as the Court rules on whether the TRO should be converted to a preliminary injunction or until otherwise ordered by the Court.



Now you know. Onward — but I see a preliminary injunction, ahead. My bet is that Judge Watson won’t rule for a week or two, this time, though — as the earlier entered nationwide TRO has obviated any need to rush it. Smiling, ear to ear. . . .


I Am Quite Happy — To Say I Told You So…

March 29, 2017 - Leave a Response

I’ll not dwell on it, in any detail this morning — other than to say (as I have repeatedly, before) it is good for America, and. . . ordinary Americans. And it holds true in Indiana, Kentucky, Kansas, Tennessee, Alabama, Mississippi and Louisiana.

Per The Washington Post this morning (subs. req.):

. . . .Lawmakers in deep-red Kansas voted to extend the government health program [Medicaid expansion] to more of the state’s poor residents. The move could be the start of a larger shift nationally as states grapple with the fallout of last week’s failure to even start the wheels in motion to replace the Affordable Care Act. . . .

Yes, and as that 2016 graphic implies, I think Medicaid expansion will now roll onward — into expansion — across even reliably red state-houses. The need is just too patently evident — comparing states with it, to states without it (on any number of public health dimensions).

So Speaker Ryan, and 45 will in effect achieve. . . exactly the opposite of what each ran on as campaign platforms, in 2016.

Hilarious — but it does mean that more people of limited means will see at least some level of basic health coverage. So I am beaming, now. . . . as some voices, deep inside the GOP, begin to call for a nearly-single payer system — thus, HRC’s legacy may emerge, without her ever holding the high office. Sweetly, and sublimely. . . ironic, that.


Shkreli-Files — Lots Of Felony Fun! — Pre-Trial Motion Practice, In Brooklyn This Morning…

March 28, 2017 - Leave a Response

ALMOST IMMEDIATELY UPDATED: PathoPhilia weighs in with this, which apparently quotes from Mr. Shkreli’s own keyboard:

“…Just checking in, and in the process, I traveled over to Shkreli’s Facebook page. Here’s this recent message to his acolytes:

. . . .“Well, my lawyers filed a 174 page bombshell explaining how the government obtained illegal evidence in my case. Evidence which doesn’t prove anything, but illegal in their procurement and receipt. Good luck, you guys will need it. . . .”

And in other news, a convicted hedge-fund trader, Michael Kimelman, thinks Shkreli will get 10 years.


For the record, I think Kimelman is right. See below.

End, Update.

To be sure, I will cover the far less interesting motion to strike, filed by Reed Brodsky (for Mr. Greebel) in some future post — but for now, the scene stealer is the (25 page PDF file of a) motion from Mr. Brafman (for Mr. Shkreli) which, from page 11 onward, discusses Dr. Koestler’s consulting role, and arbitration win (that’s a link to a September 2016 post, here — as background, BTW). And — of course — how it means (hilariously!) that Mr. Shkreli didn’t. . . (wait for it!) commit any crime.

As I have earlier repeatedly explained [Just search “Milken” on the Shkreli blog for all the posts], showing that Dr. Koestler actually did work will not cure the securities law violations, of (alleged, but indicted) parking shares in his hands, or assigning a friendly nominee to hold the Koestler payment shares, for Mr. Shkreli. The Williams Act has prohibited that, for four decades.

And it is no defense, at law, that Dr. Koestler never got the promised shares, here.

Not a defense to a felony criminal indictment which alleges a broad-ranging “scheme” to evade the Williams Act.  In fact, it suggests that Mr. Shkreli welshed on the deal, precisely because someone (likely Mr. Greebel) told him of the criminal difficulties parking presents (just ask Mike Milken).  A felonious criminal enterprise, that (all as alleged by the faithful US Attorney in Brooklyn).

To be fair, Mr. Brafman goes on to claim the government hasn’t shown the defense team all the other allegedly “sham” consulting arrangements it holds, which — the theory goes — would be exculpatory “Brady” materials, under long-standing existing US Supreme Court precedent.

More when I have more time — maybe later this week, on the Greebel motions.

Namaste — the fire is plainly rising up the building called Shkreli, now — toward a late June 2017 eight-alarm affair.


Supporting STEM — Even When It Is Not “On Fleek” — “Hidden Chemists” Edition: Jean Kahan

March 28, 2017 - Leave a Response

Please do click the image at right, and go read all about it.

She is a 1970s era Merck antibiotics “essential medicines” pioneer — and richly deserves recognition, for helping to save perhaps millions of lives — over these last five decades.

Now you know. Onward.


Former Merck Memphis Facility Is Back On The Market…

March 28, 2017 - Leave a Response

The Jackson Avenue facility is yet another 1 million square foot, 43 acre R&D and office site. I say another, because Merck still holds the Whitehouse Station, 1.1 million square foot, 44 acre facility in New Jersey.

Jones Lang LaSalle (which was in January 2014 hired to sell Merck’s legacy Schering-Plough Summit, NJ Morris Avenue facility — also nearly a million square feet, since sold to Celgene) is the retained broker in Memphis.

To be clear, the Memphis facility is believed presently owned by Bayer (though I’ve always wondered about some reversionary interest in Merck’s hands), as a by-product of the Consumer Health deal with Merck in 2014-15. [I’ve never been able to confirm that Merck has any ongoing obligation, in Memphis.]

Here’s the local overnight news item — off of Beale Street:

. . . .The 43-acre property includes about 1 million square feet of space, including 550,000 square feet of warehouse space, 310,000 square feet of office space, a tier-one data center and a childcare facility, according to a marketing brochure from JLL. . . .

I guess I’ve decided to highlight it this morning — to suggest that there are a number of these massive formerly pill-pharma facilities on market — and not selling. I’ll resist the urge to call them gray (nearly white) elephants, but my estimation is that despite what 45 tells his base, these old line powder pill jobs are gone for good (at least 5,000 per facility). And retooling such a behemoth into a series of smaller tech incubators is a serious capital investment. Now you know. Onward — buoyed, with hope — just the same. . . .


UPDATE: All Good, In The ‘Hood… Juno/Jupiter Science FlyBy No. 4 Edition

March 27, 2017 - Leave a Response

It quite easily might have been a violent shipwreck. . . between her thighs (in the ancient and poetic turn of phrase). . .

And with each new space science plunge (some 16 — yet to go!), the little craft is more profoundly imperiled — but onward she sails, at 129,000 miles an hour. Here’s the bit, as tweeted by NASA’s JPL, just moments ago:

. . . .Updated March 27, 2017 at 4:45 p.m. EDT:

NASA’s Juno mission accomplished a close flyby of Jupiter on Monday, March 27, successfully completing its fourth science orbit.

All of Juno’s science instruments and the spacecraft’s JunoCam were operating during the flyby, collecting data that is now being returned to Earth. Juno’s next close flyby of Jupiter will occur on May 19, 2017. . . .

Now you know — so. . . twist onward, oh you long-legged, copper-hued red-bone goddess. . . smile. At least for one more pass. . . . at least, one more.


For The Foreseeable Future, Updates On Stopping “Muslim Ban 2.0” Will Appear In Hawaii — Or The Ninth Circuit…

March 27, 2017 - Leave a Response

With a clear, yawning split — among the US District Courts, and with at least three of them now entertaining various motions to “press pause” — it seems most of the actual progress on the matter will come out of Honolulu — for now. [All of this is mostly just “filler,” until we receive that coveted ping-back, on/from twisty, long legged, copper-colored Juno (a shepherded moon-lette, of sorts), announcing that she is out of harm’s way, once more — and singing, as she beams gigs of data back to JPL. . . .]

This morning, in Brooklyn’s federal District court-house, 45 filed a motion not unlike the one he’s filed in Maryland and California. Here’s the operative bit:

. . . .The parties previously informed the Court that they are discussing settlement options (ECF No. 190). The Court thus stayed the case until March 27, 2017 (ECF No. 191).

Since then, the parties have held further discussions and continue to believe that a settlement may be possible. Under Local Rule 7.1(d), the parties respectfully request that the Court stay this case for an additional twenty-one days, until April 17, 2017. At that time, the parties would file another status report suggesting how to proceed. . . .

So — all eyes continue to be, and are on Hawaii — and/or the Ninth Circuit, in Seattle, should 45 file an interlocutory appeal. And so — with ObamaCare continuing as the law of the land, we will have ample reason to smile, even through these trying times. . . .


[U] For A Fourth Plunging Data Run — The Copper Colored Goddess Juno Will Dip Into Lord Jupiter’s Maelstrom — At Luminous Dawn Here, Tomorrow

March 26, 2017 - Leave a Response

By now, regular readers well-know how these white knuckle close encounter events so completely fire my passions. [Just one of our prior stories on Juno is here. Use the search box above, for the rest — another ten or fifteen of them.] Each time she swings in close, the risks multiply. . . . [Updated: She survived, nary a shipwreck, a’tween her thighs. . . We should know by around 1 PM EDT on Monday whether she survived her dip.]

So it is that on Monday (tomorrow, around Five AM local), the lilting, long-legged Juno, a twisting copper-colored shepherded moon-lette (of sorts), will once again dip dangerously close to the Jovian polar vortex, and once again brave perhaps the most daunting conditions a spacecraft has ever encountered inside our solar system. . . .

She will be a virtual blur, movin’ at a blazin’ sprinter-pace, as fly-bys go (at 129,000 miles an hour — to minimize time in the danger zone, and not get trapped in a gravitational death spiral), enduring crazy hot radiation @ 20 million RAD; a magnetic field 20,000 times stronger than Earth’s — coming rapidly out of minus 280 degrees Fahrenheit, straight into an unimaginably vast and powerful microwave oven, on full-blast. “Charred on the outside, frozen on the inside,” indeed.

All of this, half a billion miles away from any possible Earth-based software repair (and thus a 48 minute lag — at the speed of light, for commands to be received). So, as she speeds past this fourth time, she will have all of her eight instruments on, and recording. . . . We will be keeping a good thought — that her graceful copper-colored limbs aren’t fried by the radiation, or fouled by the magnetic storms, as she collects data on what Jupiter hides beneath those enigmatic cloud-tops.

Here’s a bit, from NASA, this clear cold Sunday morning:

. . . .”This will be our fourth science pass — the fifth close flyby of Jupiter of the mission — and we are excited to see what new discoveries Juno will reveal,” said Scott Bolton, principal investigator of Juno from the Southwest Research Institute in San Antonio. “Every time we get near Jupiter’s cloud tops, we learn new insights that help us understand this amazing giant planet.”

The Juno science team continues to analyze returns from previous flybys. Scientists have discovered that Jupiter’s magnetic fields are more complicated than originally thought, and that the belts and zones that give the planet’s cloud tops their distinctive look extend deep into the its interior. Observations of the energetic particles that create the incandescent auroras suggest a complicated current system involving charged material lofted from volcanoes on Jupiter’s moon Io. . . .

It will take several weeks to download all the data, but we are already learning tons of new gas giant planetary science, from her earlier death-defying dips. ‘Tis grin-worthy, indeed — as now, lots of Spring Breakers’ weeks close out. . . . smile.


Friday Night “Federal” Fights: Judge Trenga (USDC ED VA) Has Entered An Opinion — On Muslim Ban 2.0…

March 24, 2017 - Leave a Response

We now have, as of Friday night, several trial level federal court opinions that are in direct conflict with one another. Earlier last month in Boston, and now, tonight in Alexandria, Virginia (as a 32 page PDF file), there are two opinions finding a TRO or preliminary injunction is not warranted, or appropriate, on this second executive order.

On the other hand (as we’ve amply reported here), in Seattle alone, there are two — a trial level, and an appellate level opinion, coming out the other way. Moreover, in Brooklyn, Baltimore and Honolulu — there are three more rulings in favor of TROs. [I believe there is at least one each in Central, and Northern California, and one Wisconsin — all against the ban, as well.]

I tally it as at least 7-2, in favor of striking the Muslim Ban.  But there is plainly a yawning chasm/split of authority, among the federal District Courts, here.

That fact alone may allow that the Supremes will take it up directly (without intervening appeals), should either side make such a motion. When we overlay this clear split, onto the notion that this is an extremely important and ground-breaking question — one with profound implications for Constitutional separation of powers, and executive branch authority — I will bet that within a month, or two at the outside, some form of one of these Muslim Ban 2.0 TROs will be placed on the Supremes’ docket.

Until then, we will have to wait. As of tonight, Friday, March 24, 2017 — Mr. Trump has filed no definitive, substantive appeal — on any of the TROs, nationwide. Perhaps he is in no hurry, thinking his SCOTUS nominee will be seated by the time it reaches briefing.

[Personally, I already see five solid SCOTUS votes — to strike Muslim Ban 2.0, with or without 45’s nominee. And I think 45’s people well know it. That’s why he is doing a slow cha cha here.

I predict, more specifically — that Justice Kennedy will join the expected four (Justices Ginsburg, Kagan, Breyer and Sotomayor), and strike his ban. If that is so — Gorsuch will not matter, at all (and it is not beyond belief that Chief Roberts and Newbie Gorsuch might join the other five). Not probable; but possible. We shall see. Goodnight, to all of good will. Today was a great day — for people with a modicum of compassion, in their hearts.]