Not Quite O/T: Weekend Fare — The Infantile “Logic” Of A Sitting President Edition, On Immigration

February 11, 2017 - Leave a Response

life-no-trump-02-11-2017Um. . . Nope. I can’t hold my tongue. I too shall #persist. Nor shall I lay rest to my keyboard; I shall #resist.

This morning, 45 tweeted a pure non-sequitur, because he read it in the Washington Times (a far right rag — I’ll provide no link — because there are serious problems with the rag’s calculations). But let us play along — let’s pretend the claim is fully-verifiable. Even in that fake news world — danger should not be presumed.

Mr. Trump is apparently blissfully unaware that many hundreds of thousands of regular, law-abiding people (scientists, engineers, teachers, translators and students) from these seven countries have jobs, class-room work, and families here — and they are concerned that he will “re-ban” them all, once again — as early as Monday. So they are coming here, in droves. There is little doubt that the vast majority are law abiding. But he resorts to the most odious and pernicious bigotry — in his fear-mongering tweets, this morning. Here is his 140 odd characters — of excrement:

. . . .Our legal system is broken! “77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries.” (WT) SO DANGEROUS!. . . .

Mr. Trump labels entire countries of origin “suspect” now. It apparently hasn’t dawned on him that statistically we each have a greater risk of being shot to death by a TODDLER, with a hand-gun, in present-day America (thanks, NRA!) — than being killed in a foreign sourced terror attack.

So — do bring on your shiny, newly revamped order on Monday, sir. We will see it slapped down, in the courts, as well. This is what the peoples’ government — by checks and balances — looks like, Mr. President. 

Get used to it: now that you’ve openly and repeatedly articulated a prohibited motive for all/any of your “immigration” orders, the Judiciary will find against those same orders, on Constitutional grounds (Amendments One, Five, and Fourteen — to be precise).



A New Wrinkle In The Ninth Circuit: Exclusive Content. Must Credit.

February 10, 2017 - Leave a Response

life-geo-washington-1785-ninth-cir-arg-2017It seems one of the other able appellate jurists has requested a vote of the 29 judges be taken — on whether to hold an en banc rehearing of the Trump stay request. [It is highly unlikely that enough “rehearing” votes can be mustered to carry that notion — a majority of 29, or 15 or more.] Even so, the parties have been ordered tonight to submit no more than 14,000 words each, on whether the case should be reheard en banc. Wild.

. . . .THOMAS, Chief Judge and En Banc Coordinator:

A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16.

The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3). . . .

An en banc hearing would involve more than 20 judges sitting at once. Is this more sand in 45’s gears? I think so. And the White House tonight is saying it may drop its Ninth Circuit appeal altogether. The RNC is saying the White House may not. Nutty, but my experienced take is that the Muslim Ban. . . is no more.



I’m Tardy With This Item — But Merck Spent $1.375 Million on Lobbying, In Q4 2016. I Simply Forgot To Look.

February 10, 2017 - Leave a Response

It’s all been public on the Senate’s website since late January 2017 — but my mind’s been. . . elsewhere. This represents a lower quarterly spend, compared to prior years’ Q4 spending — due to previously-discussed presidential election year political cycles.

We see this about every four years — and for the full year, Merck spent just over $8 million, while Pfizer spent slightly more than $13 million for the full year. Here is what Merck’s Q4 2016 money was spent on:

. . . .340B (no specific bill), Hepatitis C (general education; no specific bill), Human papilloma virus and vaccine policies (general education; first dollar coverage; preventative services), shingles vaccine policies (general education), antimicrobial resistance (general education), biosimilars (no specific bill), 21st Century Cures (H.R.6), cost and value of medicines (no specific bill), women’s health (general education), Prescription Drug User Fee Act (PDUFA; general education), Affordable Care Act, general pharmaceutical issues (transparency, formulary design, prescription drug coverage). . . .

Comprehensive tax reform (no specific bill), House Republican tax blueprint, international tax proposals (no specific bill), orphan drug legislation (HR 3678). . . .

Medicare Part D (general education, no specific bill), changes to low-income subsidy structure in Medicare Part D (general education, no specific bill), H.R. 5122 (Centers for Medicare and Medicaid Innovation Part B demo), Independent Payment Advisory Board (general education, no specific bill), Medicare Part B (general education); Medicaid (no specific bill). . . .

[Ed. Note — new this quarter:] FMD vaccine bank. . . .

H.R. 2028 (continuing resolution to fund the federal government). . . .

[Candidly, I’m not sure what “FMD vaccine bank” efforts might refer to. . . will look into that. Possibly “future medical disasters”? Dunno. Nope. “FMD” vaccine banking is foot and mouth disease — in farm animals. Hmmm. I thought Merck had exited animal health(?). . . . I guess we still need a federal firewall against human contagion paths. Odd.]

This Q4 Merck spend compares with $2.8 million by Pfizer, in the same Q4 period. So Ian C. Read spent out of proportion to Pfizer’s size — compared to Kenilworth’s size. It seems some times, the best course is to say nothing at all. . . . Full moon, lunar eclipse and comet’s fly-by tonight, if my mood improves, and the skies clear here. . . .


Over Prior Two Years, Vanguard Has Upped Its Merck Position Rather Appreciably… At 6.7%, Now.

February 10, 2017 - Leave a Response

mrk-vanguard-up-2-2017As the largest holders report their year end positions, we note that the well-respected Vanguard Group of affiliated funds has steadily increased its Merck bet, over the last few years — from 5.4 per cent (at the end of 2014) of all Merck’s outstandings, to 6.0 per cent, at 2015 year-end — and now, up to 6.7 per cent, at year end 2016:


184,729,642 Shares (6.70%). . . .

[And, confidential to 45 — your lawyers are citing a 1951 statute, that has been amended in 1965, without taking into account the 1965 amendment. . . that is why you are losing, and will continue to lose — even at the Supremes (not because the Ninth Circuit, or any other federal court — is “political“).

Silly Cheeto-monster — to parse the law, one needs to be. . . at least minimally sentient.] Onward, to a rather somber family weekend.


Meanwhile, In Brooklyn… 45 Is Likely To Lose. Again. His Brief Is Due, At High Noon Eastern, Tomorrow.

February 9, 2017 - Leave a Response

life-brooklyn-no-ban-stay-2017The very able trial level federal jurist in New York’s Eastern District (sitting in Brooklyn), Judge Carol Bagley Amon — just endorsed the parties’ expedited briefing schedule.

In Brooklyn, the posture of the Muslim Ban is that the enforcement of 45’s executive order has been stayed, until the court can be briefed and rule. That stay would expire on its own by February 21, 2017 — but now that the nationwide TRO entered in Seattle will continue until either the Supremes reject an appeal by Mr. Trump, or the trial level judge rules on a preliminary injunction, there is really no danger — if February 21 comes and goes, for the “banned people”.

Of course, 45 is very focused on trying to remove this stay — but again, that’s likely a loser — based on the Ninth Circuit’s unanimous opinion of this evening. Here’s the East Coast schedule then:

. . . .(1) Defendants will file their brief in response to Plaintiffs’ Emergency Motion for a Stay of Removal, as well as their motion to dismiss, by noon, February 10, 2017;

(2) Plaintiffs will file their responsive brief on both motions by February 16, 2017; and

(3) Defendants will file their reply by February 19, 2017. . . .

life-ninth-circ-ahmed-no-ban-02-06-17 [Separately, it looks more and more likely now, based on his raging ALL CAPS tweets tonight (charming!), that 45 will order the DoJ to appeal directly to the Supremes, on the Ninth Circuit decision. So much so, that the State of Washington sought — and was apparently granted — a waiver from filing its trial level brief, on the preliminary injunction, tonight.] But that Supremes gambit is a pure loser, for 45, in any event, IMHO. Now you know.

Here’s to hoping that copper colored, twisty silence isn’t the new normal. . . smile. . . .


[U] After Increasing Its Stake During 2015, Wellington Has Lightened Its Merck Position During 2016… But Not To worry.

February 9, 2017 - Leave a Response

mrk-div-11-22-2016Okay — it makes good sense to my disciplined investing eye that Wellington (a vast group of affiliated institutional holders) might have taken some gains off the table in 2016, as to its now decade old investment in Merck (and previously, in legacy Schering-Plough).

So again, I wouldn’t read too much of anything into this latest dip. Here is the full SEC filing, on Schedule 13G, from this morning:


124,191,831 Shares (4.5%). . .

[Separately, and in an entirely unremarkable fashion, board of director member Russo yesterday exercised and sold about $147,000 worth (pre-tax) of long-vested options.] Now you know. Awaiting either more gray smoke, or white smoke — from the chimney of the Ninth Circuit, now. . . smile.

UPDATED — 02.09.17 @ 6 PM EST: Hah! White smoke it is!

As I said it would, the Ninth Circuit has ruled against Mr. Trump’s appeal. By its terms, the Unanimous Opinion sends the case back to Seattle, where a briefing schedule started tonight, on a preliminary injunction. That preliminary injunction would extend the TRO, and be entered in favor of the “banned people” in Mr. trump’s executive order. I suppose Mr. Trump could (right now, or promptly) file a writ of mandamus to the US Supreme Court, but that would be (another) fools’ errand, in my view.

So it is onward, to the trial court level proceedings on a preliminary injunction — per the [prior post’s] schedule. Told ‘ya.

Quoting the Ninth Circuit now: “. . .Whatever role the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . .” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)


[U] Newly-Revised Briefing Schedule, For The Preliminary Injunction, At Washington’s Federal Trial Court Level

February 8, 2017 - One Response

life-ninth-circ-ahmed-no-ban-02-06-17UPDATED — 02.09.17 @ 6 PM EST: As I said, the Ninth Circuit has ruled against Mr. Trump’s appeal. By its terms, the Unanimous Opinion sends the case back to Seattle, where a briefing schedule started tonight (below, in blue), on a preliminary injunction. That preliminary injunction would extend the TRO, and be entered in favor of the “banned people” in Mr. trump’s executive order. I suppose Mr. Trump could (right now, or promptly) file a writ of mandamus to the US Supreme Court, but that would be (another) fools’ errand, in my view.

So it is onward, to the trial court level proceedings on a preliminary injunction — per the below schedule. Told ‘ya.

Quoting the Ninth Circuit now: “. . .Whatever role the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. . . .” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)

[End, updated portion.]

So, first filing in Seattle tomorrow, IF. . . If the Ninth Circuit Does NOT enter a reasoned opinion “on the merits” against Mr. Trump’s position, and if Mr. Trump doesn’t then take an immediate appeal to the Supremes — in short, if this case is treated like any other federal case, and the TRO is left standing, as the latest appeal by Mr. Trump was prematurely improper at this juncture — then, back in Seattle, this will be the briefing schedule on a preliminary injunction — as ordered by the very capable Judge Robarts yesterday (in blue below).

I suppose there is a reasonably good chance (based on the audio feed questions) that the Ninth Circuit will position this for an immediate appeal to the Supremes — given the truly historic nature of this clash, between the long established right, and responsibility (ever since Marbury v. Madison) of federal judicial review, on the one hand, and the claims of completely untethered executive authority (even putatively rising above the proscriptions in the Establishment Clause of our First Amendment), by this particular 45th President.


The plaintiffs shall file their motion for preliminary injunction no later than 11:59pm Pacific Standard Time on 2/9/17;

The defendants shall file their opposition to plaintiffs’ motion no later than 11:59pm PST on 2/15/17;

The plaintiffs to file their reply in support of their motion no later than 11:59pm PST on 2/17/17.

/s/ Judge James L. Robart. (RS) Modified on 2/7/2017 to cc Ninth Circuit. . . .

I cannot find any right wing blogger (responsible, or otherwise), with a law degree — that is predicting a win for Mr. Trump now — after yesterday’s evisceration before the Ninth Circuit panel — heard live by over 175,000 people, apparently — breaking all prior records, in the circuit. So — I expect an order from the Ninth Circuit tonight, or tomorrow. Then it is either on to the Supremes, or back to the trial court in Seattle — but mark my words, the TRO will remain in place.

Now you know. Hopping a plane in a few. Be excellent to one another. . . .


[U] The Oral Argument/Hearing In San Francisco, At The Ninth Circuit — Streaming Details @ 6 PM EST

February 7, 2017 - Leave a Response

life-geo-washington-1785-ninth-cir-arg-2017 UPDATED @ 6 PM EST: I am listening into the Ninth Circuit’s feed — and the US DoJ is claiming that the President’s EO is “unreviewable.” The three judge panel has jumped in with very hostile questioning — the panel is telling the lawyer for Mr. Trump that cannot be. So the Ninth Circuit has already said that the DoJ appeal is premature on TRO grounds — but the Ninth Circuit is now peppering the DoJ “on the merits” — suggesting that it cannot be true that the judicial branch is not allowed to review Presidential Executive Orders.

Thus this is going quite badly for Mr. Trump. I think he’s already lost any chance of lifting the TRO at this point. One panel member, Judge Michelle Friedland, just suggested she thinks the EO commits a violation of the Establishment Clause, and thus is facially invalid. Ouch — for Mr. Trump. [End, updated portion.] As promised. . . then:

I have but a moment now to dash this off — thus, here is a link, to the live-stream of the Ninth Circuit hearing this afternoon — so listen in, for history is being made here — in real time.

. . . .The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment. . . .

— George Washington (1782)

. . . .[L]et the poor, the needy and oppressed of the Earth, and those who want Land, resort to the fertile plains of our western country, the second land of Promise, and there dwell in peace, fulfilling the first and great commandment. . . .

— George Washington (1785)

. . . .I had always hoped that this land might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong. . . .

— George Washington (1788)

Busy day ahead, out west here. . . . smile.


Merck GC Nets $1.274 Million In Cashless Stock Option Exercise Move But Still Holds Over $3.2 Million In Stock…

February 7, 2017 - Leave a Response

life-mrk-holston-sells-2017In my experienced opinion, there is nothing to be concerned about (as an unaffilated investor) here — he is likely just diversifying his holdings a bit. [On a shortish break, here.]

After all, his paycheck, and health care benefits, and pension payment (at eventual retirement) are all tied to the fortunes of only one company.

So spreading his assets out a little, putting some in other buckets, makes sense. And to do so, he had to liquidate some of his Merck investment. In sum, I’d read nothing in to this — as to Merck’s future or fortunes.

Now you know. [I’ll likely break out at 6 PM EST here, to listen to the Ninth Circuit livestream at least for a bit. But being held captive by clients until then, today. And flying back in the evening tomorrow, now. . . Smile. . .]


The State Of Washington Has Met Its Burden In The Ninth Circuit; Trump Administration Appeal Will Be Dismissed

February 6, 2017 - Leave a Response

life-ninth-circ-ahmed-no-ban-02-06-17 UPDATED @ 8:45 EST — With over 220 law professors signing on to support Minnesota and Washington, via amicus briefs filed this afternoon (and on the other side, the NRA, and an America First-related organization signing on to back the DoJ), the Ninth Circuit panel has now scheduled a hearing for 3 PM PST tomorrow. That hearing will be available by a live-streamed (video?) feed, from the appellate court itself. [I’ll set a link to that feed, in a new post, in the morning.]

On the substance, I continue to believe that Judge Robart’s nation-wide TRO will remain in place after that hearing tomorrow. That is, I expect that Mr. Trump’s Muslim Banning executive order will continue to be suspended — for the foreseeable future. A DACA executive order case (in the Fifith Circuit, out of Louisiana) that the Obama administration lost in 2015 proves quite instructive here — and that order had no earmarks of religious or national origin discrimination — both prohibited in an act of Congress in 1965 (as to entrance quotas) — an generally embedded in our Constitutional Bill of Rights for over two centuries, here. [End, updated portion.]

I’ll attach the full 49 page brief (about 1.1 MB) and exhibits here — but after arguing that a TRO is non-appealable at this stage (as I said over the weekend), the state makes a very muscular argument on the law (and Constitution) that the Ninth Circuit may outright finally rule against Mr. Trump right now, and permanently enjoin the order (regardless of procedual flaws in Mr. Trump’s so-called “appeal”).

Of course, in judicial parsimony, that will not happen — and ultimately it will be the Supremes that strike Mr. Trump’s purported Muslim Ban executive order. Consider:

. . . .[T]he Order denies entry to the United States of all persons from the seven countries, regardless of whether they have lived legally in this country for years.

Thus, our States’ residents from these countries who travel abroad will be deported if they attempt to re-enter this county, and those who remain will be forced to forego international travel to avoid that devastating result. This draconian restriction violates due process.

The Fifth Amendment protects all persons in the United States “from deprivation of life, liberty, or property without due process of law,” regardless of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas v. Davis, 533 U.S. 678, 693 (2001). A temporary absence from the country does not deprive longtime residents of their right to due process. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”) (internal citation omitted); Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953). . . .

life-tro-trump-02-03-17 The State has alleged and offered substantial evidence even before discovery that the Executive Order violates the Establishment Clause because its purpose and effect are to favor one religion. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). In Larson, the law at issue did not mention any religious denomination, but drew a distinction between religious groups based on facially neutral criteria. Id. at 231-32. The Court nonetheless applied strict scrutiny because the law was focused on religious entities and had the effect of favoring some. Id. at 246-47.

Larson applies here. The Order’s refugee provisions explicitly distinguish between members of religious faiths. President Trump has made clear that one purpose of the Order is to favor Christian refugees at the expense of Muslims. ECF 18 ¶ 53, Ex. 8. And the States have plausibly alleged that the countries chosen for the travel ban were chosen in part to disfavor Muslims. . . .

This case thus involves just the sort of discrimination among denominations that failed strict scrutiny in Larson, and must fail here.

Defendants claim that the Order “is neutral with respect to religion.” Motion at 19. “But it is . . . the duty of the courts to distinguish a sham secular purpose from a sincere one.” Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 864 (2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).

Here, the sham of a secular purpose is exposed by both the language of the Order and Defendants’ expressions of anti-Muslim intent. See, e.g., McCreary, 545 U.S. at 866 (courts consider the “historical context” of the government act and “the specific sequence of events leading to [its] passage”). . . .

Now you know — off to a Western United States working day. [We now await the Trump administration response by 6 PM EST, tonight — but I’ll confidently say it is all over.]