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Meanwhile, another DOJ move from Barr

Meanwhile while we are pre-occupied with corvid-19 comes this news from  Rolling Stone:

The Trump Department of Justice has asked Congress to craft legislation allowing chief judges to indefinitely hold people without trial and suspend other constitutionally-protected rights during coronavirus and other emergencies, according to a report by Politico’s Betsy Woodruff Swan.

The DOJ has requested Congress allow any chief judge of a district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation,” according to draft language obtained by Politico. This would be applicable to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil processes and proceedings.” They justify this by saying currently judges can pause judicial proceedings in an emergency but that new legislation would allow them to apply it “in a consistent manner.”

Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, told Politico the measure was “terrifying,” saying, “Not only would it be a violation of [habeas corpus], but it says ‘affecting pre-arrest.’ So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government.”

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Not Just Covid 19, Cancer Too

Chloroquine and Hydroxychloroquine are being tested as components of multi-drug cancer chemotherapy. I have noticed that when I tweet this, people conclude that I am insane.

However this is not a tiny literature. \

Repurposing Drugs in Oncology (ReDO)—chloroquine and hydroxychloroquine as anti-cancer agents
is a long review article and meta analysis. It cites seven peer reviewed article which report the results of clinical trials and dozens of ongoing trials.

This is why I became interested in chloroquine and hydroxychloroquine. My family was very amused to find those drugs appearing in the news on Covid. I learned about Donald Trump playing doctor on TV, because my father immediately e-mailed me that now Trump is saying that stuff too (he I note does not think I am crazy — but he wouldn’t would he).

It is very easy to keep up with clinical trials, because there is a Clinical Trials Registry. To prevent publication bias and cherry picking, studies must be posted there, and a principal outcome measure must be chosen in advance. Otherwise the FDA considers any data to be irrelevant.

So see there are 21 Studies found for: chloroquine | cancer (at least one terminated because there was no sign the Chloroquine was helping — others with promising results — many others ongoing)

There are 74 studies of hydroxychloroqine & cancer

There are currently 5 Studies found for: hydroxychloroquine | Coronavirus

There is a (very overlapping) set of 6 studies of covid 19 & hydroxychloroquine

MY mania was triggered months ago while I was searching the Clinical Trials Registy.
https://clinicaltrials.gove is addictive

Hmm only 2,236 studies of addiction, one is
“Smartphone Addiction and Physical Activity” now I do have to look at that one on my phone (having neither the inclination nor the Prime Minister’s permission to engage in physical activity

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It is Clear that Hydroxychloroquine and Chloroquine are Currently Used to Treat Covid 19 in the USA

Patient privacy prevents precise calculation of the fraction of Covid 19 patients in the USA being treated with Hydroxychloroquine or Chloroquine. However, Hospitals are purchasing hugely increased amounts

Christopher Rowland reports.

Data gathered in the first 17 days of March by Premier Inc., a large group purchasing organization for 4,000 U.S. hospitals, showed a 300 percent week-over-week increase in orders of chloroquine and a 70 percent week-over-week boost in orders of hydroxychloroquine.

I think that, because of the association with Trump, this is presented as a bad thing. Certainly there is a problem of short supplies. Hydroxychloroquine is used to treat Lupus Erythematosus and Rhumatoid Arthritis and those people have trouble making sure they get their medicine, because of the sudden new demand.

The article begins with the odd reference to the FDA as if the FDA regulated off label prescription of drugs. The only legal effect of an FDA finding that the drugs work when treating Covid 19 is that manufacturers would then be allowed to claim this in advertisements. This is extremely irrelevant. The drugs are off patent and produced by many firms — there are no huge profit margins there. Also the free publicity dwarfs any possible ad campaign. The FDA has no relevant authority here.

It seems that there is an idea among many people that doctors shouldn’t do anything unless it is proven to work in a clinical trial. I recall (but can’t find) and article in which Dr Arnold Relman (editor of the New England Journal of Medicine and pretty much head of the medical establishment) denounced this. Waiting for clinical trials is a decision. It is a decision which has caused deaths. There is no option to stop the clock while the trial progresses. Patients who could benefit from or be harmed by novel treatments exist.

The idea that the practice of medicine should be vaguely like the approval of pharmaceuticals is definitely new. I am 100% sure that the main driver is fear of malpractice suits. It is very necessary to have an official published standard of care — following this standard is the only protection against malpractice suits when outcomes are bad &, you know, we all end up dead in the end.

But doctors must practice also when there is no standard (that is no committee of respected doctors is willing to take the moral not legal responsibility of drafting one). Obviously there is no standard of care for Covid 19. Also obviously many doctors are sensible enough to look at the balance of evidence in the absense of proof and make decisions which they believe are best for the patient in the absence of certain knowledge and knowing that they might regret the decision with the benefit of hindsight.

I don’t understand why official talk about medical care is so different from the current actual practice. I think it is partly about practical action vs scientific research. In scientific research it is perfectly fine to have open questions. If there is a patient on the edge of death, it is necessary to decide now.

But I am more confident than I was that small c conservatism is not killing as many people in the USA as it might.

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What do we want ? Hydroxychloroquine (update without Azithromycin) and Remdesivir. When do we want it ? Now

I will never forgive Donald Trump for saying something exceedingly controversial with which I agree. I hate to say this but I agree with Trump and disagree with Fauci on hydroxychloroquine and Remdesivir.

Update: But don’t mix the Hydroxychloroquine with Azithromycin
“Azithromycin: (Major) Avoid coadministration of hydroxychloroquine and azithromycin.”

Thanks Ted Lieu

I will discuss hydroxychloroquine here because there is no legal issue. It can be prescribed for Covid 19 under current law and regulation. As noted here, the FDA has no say in the matter — they regulate food, drugs, and advertising and do not regulate the practice of medicine.

Consider the different treatment of Remdesivir, Hydoxychloroquine, and sever control measures. Because it is not proven that hydroxychloroqine works, it is considered a Trump average level outrage to say it should be tried. The side effects have been known for decades (and are acceptable given the circumstances). It inhibits SARS Cov2 replication in vitro https://www.nature.com/articles/s41421-020-0156-0 . There is anecdotal evidence that it has saved lives.

This does not amount to proof. Therefore, it is argued (by many people I respect) that it is irresponsible to type the following: all Covid 19 patients should be given hydroxychloroqine now. There is no morally acceptable alternative to doing this now. Now.

In contrast, there is extremely limited evidence on extreme control measures. There is no control group. The sample size is maybe one or two. And yet, it is perfectly responsible to advocate extreme control measures. Indeed it is perfectly responsible to impose them by decree (I am in Rome and have been ordered by prime minister Conte not to leave this apartment without a good reason).

Note the contrast here
The NYTimes.com presents a model graphically on page 1. It shows estiamtes. It is, in fact, theory, forecast not fact. The effectiveness of “severe control measures” is assumed. The data on which the estimate is based isn’t presented (on page 1)

Consider this published the same day (no longer on page 1)

“Trump’s Embrace of Unproven Drugs to Treat Coronavirus Defies Science”

Notice there is no headline about how Cuomo’s, Newsome’s and Conte’s embrace of unproven public health measures defies science (and I absolutely don’t assert that — I think they are making reasonable policy choices given necessarily incomplete knowledge)

It is absolutely clear that there is no general rule for acting without proof or solid knowledge. Sometimes, the rule is to not do something new until there is proof that it works. Usually, the rule is entirely different.

I do not think that anyone can justify the current dichotomy. I don’t think anyone tries. It is just assumed that the FDA rules are laws of nature and must be accepted.

I am trying to understand why this is. There are many possible good explanations which I will try to consider over after the jump

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Remdesivir II

This is, in fact, another post on Coronavirus, but it will take me a while to get to the point. To put the conclusion here, I think that it is important to get the FDA out of the way (by executive order if necessary).

The Food and Drug Act, as currently interpreted, requires the assumption that people should (generally) not be treated with pharmaceuticals which haven’t been proven to be safe and effective. The rule is first do no harm, second do no harm. This only makes sense if results with current standard of care are acceptable. In this case, they aren’t. I think there should be mass production and use of Remdesivir starting on the 5th of March, based on one case where it seems to have cured a patient overnight.

To be honest, I think it should have been approved based on evidence that it is safe (from failed efforts to treat Ebola) and evidence that it inhibits the RNA dependent RNA polymerase of the MERS Coronavirus

Obviously one case is not proof. Still more obviously a pre-clinical study of a related organism isn’t strong evidence about the novel coronavirus.

So ?

It isn’t as if the current approach is working so well, that we should stick with it until there is proof that a new approach works better.

I think the trace of information is enough that, given almost no knowledge and a very diffuse posterior, one can conclude that the expected welfare of a patient treated with Remdesivir is higher than of one not treated with Remdesivir.

At this point, the standard ethical rule that decisions should be made in the patients’ intererests would mandate use of Remdesivir
(I personally do not accept that rule)

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SCOTUS and the Federal Courts

This is a copy and paste of Dahlia and Mark’s excellent critique of what is happening at SCOTUS and the Federal Court System under Justice Chief Justice John Roberts’ tutelage, McConnell loading the courts with patronage, and Trump’s whatever. I have seen some condemn the verbiage of Senator Schumer calling out Justices Kavanaugh and Gorsuch as threatening and yet at the same time ignoring the courts’ partisan behavior which will have an impact for years to come. The very same people will be decrying the court’s political decisions going forward.

No doubt, McConnell led Republicans are packing the courts with partisans who are more interested in politics rather than administering the law while Chief Justice John Roberts looks the other way. McConnell has been talking with older federal judges in an effort to get them to retire so they can be replaced with Republicans this year and before the election. This is a pretty good read by Dahlia and an eye-opener.

“Nowhere is the problem of asymmetrical rhetorical warfare more apparent than in the federal judiciary. For the past several years, federal judges, notably those appointed by Donald J. Trump, have felt unmoored from any standard judicial conventions of circumspection and restraint, penning screeds about the evils of “big government.” and rants against Planned Parenthood. Most of the judicial branch, though, has declined to engage in this kind of rhetoric. There are norms, after all, and conventions, standards, and protocols. There seems to also be an agreement the rightwing-judges demonstrate deeply felt passion when they delve into such issues, while everyone else just demonstrates “bias” if they decide to weigh in. So when Justice Clarence Thomas just last year used a dissent to attack the integrity of a sitting federal judge in the census case, it was mere clever wordsmithing. But when Justice Sonia Sotomayor suggests, as she did recently, that the right-wing of the high court seems to be privileging the Trump administration’s emergency petitions, she is labeled—by the president himself—unfit to judge. It’s such a long-standing trick, and it’s so well supported by the right-wing outrage machine, that it’s easy to believe that critiques of fellow judges by conservative judges are legitimate, while such critiques from liberal judges are an affront to the legitimacy of the entire federal judiciary.”

In case you are wondering what decisions have been made in the SCOTUS by the cabal of 5, I am going to let Senator Sheldon Whitehouse (RI) enumerate them for you.

Back to Dahlia Lithwick:

“This dynamic is why it’s so astonishing to see progressive judges really go for broke in criticizing conservative bias in the judiciary, as U.S. District Court Judge Lynn Adelman does in criticizing the five conservative justices on the Roberts Supreme Court in an upcoming Harvard Law & Policy review article.* The article begins, brutally:

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A Political Judiciary – Sunday Edition

When I was commenting at Slate’s  Moneybox and Best of the Fray sites at least a decade or so ago, Dahlia Lithwick had taken over Jurisprudence. She always gave a sound and fair analysis of court decisions, the impacts of those decisions, and the resulting politics coming out of them. Fast forward   .  .  .  I was reading Schumer’s “reap the whirlwind” comments wondering why he would make such and then wondering why Chief Justice Roberts had not winced sooner on remarks being made about judges and justices while occupying his pulpit chair looking down at the rest of us. Schumer’s remarks are a replay akin to what Justice Brett angrily said to the Senate Judiciary Committee. It has not gone unnoticed that Republicans white wash their ilk, Democrats eat their own, and those who comment fail in their commentary to treat this for what it is.

Roberts Denounces Schumer for Talking About Kavanaugh the Way Kavanaugh Talked About the Senate,” Slate’s Jurisprudence, Dahlia Lithwick

“On Wednesday, Senate Minority Leader Chuck Schumer had a message for Donald Trump’s two nominees to the Supreme Court as the court heard oral arguments in a landmark abortion case that threatens one of the underpinnings of Roe v. Wade. “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price!” Schumer warned of the pair’s jurisprudence since arriving on the bench. “You won’t know what hit you if you go forward with these awful decisions.”

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Novel Coronavirus and Better Unsafe than Sorry

It is possible that a known pharmaceutical called remdesivir inhibits the reproduction of the Covid-19 coronavirus. It inhibits (some) RNA dependendent RNA Polymerases — the type of enzyme the virus uses to replicated its genome and express its genes. It is known that it is a potent inhibitor of the RNA dependendent RNA Polymerases used by the MERS coronavirus

update: here is a good site for Covid-19 data.

So what will be done with remdesivir ? What should be done ? Is what will be done anything like what should be done ?

I think I can guess what will be done. Different groups will work on different projects. Some labs will attempt to produce and purify the Covid-19 RNA dependent RNA polymerase to check if remdesivir inhibits it too. The patent holder, Giliad Science will start a two Phase III trials of remdesivir. Results will be reported and then the FDA will decide whether to approve it for use.

This is good as far as it goes, but I don’t think it goes close to far enough.

I think that aside from the trials, Remdesivir should be given to patients and contacts of patients. It is known to be safe (from the trial which shows that it doesn’t cure Ebola). Also a whole lot of it should be produced starting a month ago.

The first proposal implies changing the law — making an exception to the Food and Drug Act. It also requires some organization without shareholders to bear the liability for side effects (The bill should make the US Federal Government liable). It goes completely against the standard logic that it is against patients’ interests to treat them with unproven drugs. There are two reasons to abandon that logic. First it is unconvincing in general. Second the risk of reacting too slowly to a budding pandemic is huge.

The mass production of Remdesivir is a simpler decision. The risk is a high chance of wasting tens or hundreds of millions of dollars. The risk of business as usual is a small chance of tens of millions of deaths, because drug shortages prevent effective control of the epidemic.

The logic of regulation and policy is first do no harm and better safe than sorry. Safety is not currently possible. A small c conservative approach is also small c crazy.

update:

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TPM has the Running Dialogue between Stone’s Attorneys and the Court – Update

Click on the link and scroll down to the beginning

Roger Stone Is Sentenced

“Tierney Sneed is at the federal courthouse in DC.” Live Blogging

I believe Judge Amy Berman Jackson is getting close to Sentencing Stone.

Judge Amy Berman Jackson is back and starts off: “Unsurprisingly, I have a lot to say,”

Judge Berman Jackson signals that she is also not going to go with Stone’s proposal for only probation.

Judge Amy Berman Jackson has sentenced Trump ally Roger Stone to 40 months in prison.

Updated developments during the Hearing beyond the Leap

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How to roast the planet with good intentions: The Climate Equity Act

I have suggested (here and here) that idealism is leading progressives astray.  Unfortunately, climate policy offers many examples.

Consider the Climate Equity Act of 2019.  The CEA was, I believe, the first concrete piece of legislation proposed as part of the Green New Deal.  Unfortunately, it illustrates several of the problems with progressive idealism.  The CEA is moralistic rather than strategic.  It does not take policy analysis seriously; it assumes that Congress can simply write a law requiring justice and that justice will magically appear.  In practice, the CEA will do little to promote justice, but it will put a powerful weapon in the hands of opponents of a clean energy transition.

The purpose of the CEA is to ensure all people a right to a healthful environment, and to address systemic environmental injustices and inequities.  To achieve these goals, the CEA imposes extensive procedural and analysis requirements on federal rules that affect “frontline communities”, which the act defines as low income communities, indigenous communities, communities of color, deindustrialized communities, vulnerable elderly communities, unhoused populations, people with disabilities, and communities dependent on fossil fuel industries.

Protecting frontline communities is a worthy goal.  However, the federal rulemaking process is already too cumbersome to address a problem like climate change, which will require rapid, economy-wide changes.  The CEA will make the problems with the federal rulemaking process much worse.  The CEA 1) requires agencies to engage in a comprehensive review of proposed rules and possible alternatives to proposed rules that minimize negative economic, environmental, and health consequences on frontline communities, or maximize benefits to these communities, 2) fails to specify a clear standard for agencies to use when evaluating alternative rules, and does not explain how conflicts between or within frontline communities should be resolved by government agencies, and 3) gives members of any aggrieved frontline community the right to judicial review, including the right to block enforcement of agency rules.

If progressives care about preventing climate change, this is insane.  Requiring agencies to evaluate multiple options using vague standards and giving a wide array of groups easy access to the courts will turn the CEA into a powerful weapon against all federal rulemaking, including rules that are essential for stopping climate change.

For example, creating a renewable energy system may require construction of a new network of high voltage power lines to shift electricity from areas where the wind is blowing and the sun is shining to areas where it is calm or cloudy.  It is far from clear that our political system will be able to overcome the NIMBY forces that will predictably resist every power line location decision.

Instead of helping to solve this problem, the CEA will make it far worse.  The government will have to investigate the impact of multiple power line routes on different frontline communities.  There will be conflicts between frontline communities and within such communities.  The law is silent on how these conflicts should be resolved, but everyone gets to go to court.  Fossil fuel producers resisting clean energy growth will have no trouble creating “astroturf” organizations to challenge rules they dislike.  The same problems will arise with siting decisions for wind and solar farms and the location of dams for hydro power.  Stalemate rather than progress will be the order of the day.

Even rules limiting the burning of fossil fuels will be snarled in lawsuits.  Suppose EPA tries to limit the burning of coal to generate electricity.  Such a rule would be vulnerable to attack by coal producers (recall that communities dependent on fossil fuels are frontline communities).  Coal producers or their allies would not have to argue that regulation is impermissible, they would just have to argue that the agency failed to consider an alternative rule that would be less economically harmful to communities dependent on fossil fuels – say, a rule with a somewhat slower timetable for reducing coal use.  On the other hand, children with asthma could sue the agency for not reducing coal use fast enough.  (Are children with asthma covered by the CEA?  This question seems to turn on whether asthma counts as a “disability” under the law, because people with disabilities are a frontline community.  No matter how an agency decides this question, it will be vulnerable to a lawsuit.  The possibilities for legal wrangling and delay are literally endless.)

Decarbonizing the United States economy will be a massive undertaking, and even progressives who care about a just transition to a carbon-free world should think twice about turning administrative procedure into an all-purpose weapon at the disposal of anyone seeking to block change.  This doesn’t mean that we should ignore the very real burdens imposed on disadvantaged groups.  But instead of adding more veto-points to our already creaky environmental rulemaking system, we need to figure out what types of assistance different communities need and get it to them directly.  Fossil fuel workers and communities need job training, relocation assistance, pensions and other forms of assistance.  Unhoused populations need housing.  Giving people the assistance that they actually need will do far more to alleviate hardship than suffocating the rulemaking process in a blanket of CEA lawsuits.

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