Author: admin

This column at Politico (by Republican political consultant Juleanna Glover) argues:

By most everyone’s judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn’t have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?

A secret impeachment ballot might sound crazy, but it’s actually quite possible. In fact, it would take only three senators [Republicans who would cross over to form a majority with the Democrats] to allow for that possibility.

But I don’t think that’s right; article I, section 5 of the Constitution provides (emphasis added),

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

That seems to provide a clear rule governing the matter: If 1/5 of the Senators oppose a secret ballot, the yea and nay votes “shall … be” made public. You’d need 81 senators for secrecy, not 51. Whatever one might say as a policy matter about the advantages and disadvantages of secret ballots, the Constitution’s text has taken a very specific stand on this subject. (Prof. Josh Chafetz (Cornell) has argued the same, and I’m sure others have as well.)

The column has an UPDATE, reading,

Some constitutional scholars have pointed out that Article 1, Section 5, of the Constitution designates that 20 senators can oppose a secret ballot on “any questions,” but “questions” are defined as “Any matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal.” No mention of impeachment proceedings is made. And, as others have pointed out, preceding this one-fifth requirement is crucial language: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.” Precedents are so thin here, but it is clear the Senate has the power to make its own rules over the trial proceedings. Those rules have historically required a simple majority of support.

That, though, seems wrong to me. First, the Constitution doesn’t limit “any questions” to bills, amendments, motions, or appeals (which would mean appeals from procedural rulings). That quote comes from the Senate’s web site, which doesn’t seem particularly authoritative on this score—and in any event, gives bills, amendments, and the like as such examples (“such as”) of “questions.” Whether to remove a President from office strikes me as well within the term “any question,” and for that matter within the Senate site’s phrase “Any matter on which the Senate is to vote.”

Second, that “excepting such Parts as may in their Judgment require Secrecy” precedes the one-fifth requirement simply makes clear that (1) secrecy is sometimes allowed, but (2) can be overcome by a one-fifth vote, not by a half-plus-1 vote or any other mechanism.

Third, while article I, section 5 does leave each house with the power to “determine the Rules of its Proceedings,” that general power is limited by the specific constraints in the same section:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

I take it that we wouldn’t think that the Senate could expel a Senator by a 51-49 vote, simply by creating a “Rule[] of its Proceedings” that authorizes that; the “Concurrence of two thirds” needed to “expel a Member” is an express limitation on the Senate’s powers, including its powers to make rules for expulsion. Likewise, the One-Fifth Clause is an express limitation on the Senate’s powers, including its powers to make rules for operating in secret.

from Latest – Reason.com https://ift.tt/2QcFoGD
via IFTTT

Rep. Tulsi Gabbard (D–Hawaii) has made quite the impression as she attempts to secure the Democratic presidential nomination. Her efforts were unwittingly elevated by former Secretary of State Hillary Clinton, who recently appeared to liken Gabbard to a “Russian asset.” The congresswoman is now threatening Clinton with a defamation lawsuit over that statement.

“Your statement is defamatory, and we demand that you retract it immediately,” Gabbard’s attorney said in a letter to Clinton, urging that the 2016 Democratic candidate post the retraction to Twitter and disseminate it to CNN, Fox News, MSNBC, The New York Times, The Wall Street Journal, and The Washington Post.

“In making the statement, you knew it was false. Congresswoman Gabbard is not a Russian asset and is not being groomed by Russia,” the letter said. “Besides your statement, no law enforcement or intelligence agencies have claimed, much less presented any evidence, that Congresswoman Gabbard is a Russian asset. This fabricated story is so facially improbable that it is actionable as defamation.”

While Clinton’s allegations were certainly odd, they are nowhere near the threshold for illegal slander, making this nothing more than political grandstanding. That’s particularly apparent in that, while Clinton did speculate that a third-party run was imminent for Gabbard, it would come at the behest of Republicans—not the Russians. And while Clinton did drop a name, it wasn’t Gabbard’s.

“They are going to do third party again,” said Clinton in a conversation about GOP strategy in the 2020 election with David Louffe, a former campaign manager for Barack Obama. “I’m not making any predictions, but I think they’ve got their eye on someone who is currently in the Democratic primary and are grooming her to be the third-party candidate. She’s a favorite of the Russians and they have a bunch of sites and bots and other ways of supporting her so far. That’s assuming Jill Stein will give it up, which she might not because she’s also a Russian asset.”

When a CNN reporter sought to confirm that Clinton was referring to Gabbard, Clinton spokesperson Nick Merrill responded, “if the nesting doll fits.” But Merrill also clarified that Clinton said it is the GOP that is “grooming her.” That makes far more sense in the larger context of the conversation between Clinton and Louffe. It also lines up with a certain public perception of Gabbard, who has been maligned by the left for her regular appearances on right-leaning Fox News programs.

In any case, how could such comments by Clinton possibly amount to defamation, which requires someone to circulate a “false statement of fact” with malice or negligence for the sake of harming another’s reputation? In my view, Clinton’s comments amount to nothing more than silly, unfounded speculation. Clinton never directly claimed that Gabbard is a pro-Russian traitor.

It’s understandable why Gabbard would take issue with Clinton’s comments, which were presented without concrete evidence. But ill-founded criticism is not the same thing as illegal speech.

Regrettably, Gabbard’s understanding of how the First Amendment works seems equally shaky across the board. In July, for example, she sued Google for violating her First Amendment rights after it suspended her advertising account for a few hours following June’s initial Democratic debate. The company alleges that her wave of support temporarily triggered an anti-fraud freeze; she accuses the company of bias and of trampling her free speech rights. Perhaps she has good reason to be upset, but the First Amendment protects her against government censorship, not from the business decisions made by private companies.

In this case, if Gabbard had her way, all sorts of overheated political rhetoric could become subject to costly defamation suits. I fundamentally oppose Clinton’s unsupported political finger-pointing, including her blurb about Gabbard. But the irony surrounding Gabbard’s counterclaim is difficult to ignore: It sounds less compatible with American society, and perhaps more suited to that of Russia.

from Latest – Reason.com https://ift.tt/2Oa9xDG
via IFTTT

CTPharma, a Connecticut company that supplies cannabis products to dispensaries under that state’s medical marijuana program, recently announced that it is collaborating with researchers at Yale University on a federally approved study of CBD and THC as treatments for pain and stress. This appears to be the first time that the Food and Drug Administration (FDA) has signed off on a medical study involving U.S.-grown cannabis from a source other than the National Institute on Drug Abuse (NIDA), heretofore the only legal supplier of marijuana for research in this country.

Researchers have long complained about the quality and variety of Uncle Sam’s cannabis, which is grown at the University of Mississippi under an exclusive contract with NIDA. They have also noted that NIDA marijuana cannot be used for commercial purposes, which means it cannot be used in Phase III clinical trials, the last step before FDA approval of a new medicine. The drug that subjects take at that stage has to be the same as the drug that will be sold to patients once the medication is approved.

The Drug Enforcement Administration (DEA), which for years refused to license additional suppliers of marijuana, changed its mind in 2016, the last year of the Obama administration, when it announced that it would start accepting applications from would-be growers. But under the Trump administration, the DEA has dragged its feet in fulfilling that promise. As of August, Mike Riggs noted, the DEA had received 33 applications, but so far it has not granted any licenses.

CTPharma is not licensed by the DEA to produce marijuana. In fact, its entire operation, like those of every other state-licensed marijuana supplier, remains illegal under the federal Controlled Substances Act. It is therefore rather surprising that Yale researchers were allowed to use its products—specifically, tablets containing plant-derived CBD and THC—in an FDA-approved Phase I clinical trial. “All the formulations are in tablet,” says CTPharma COO Rino Farrarese. “The FDA wanted very specific formulations.”

The study will be conducted at the Yale Stress Center, which is part of the university’s medical school. Farrarese says the DEA would not let a pharmacist at Yale dispense the tablets but withdrew its objections after the researchers proposed a different plan: The subjects will pick up their tablets at Affinity Health & Wellness, a dispensary in New Haven, and bring them to Yale for the study.

The first stage of the study involves recreational cannabis consumers who will be randomly assigned to receive either placebos or various doses of CBD, sometimes in combination with THC, over a six-week period. The second stage involves people with chronic pain. The researchers will record subjective drug effects, stress and pain ratings, heart rate, blood pressure, and blood levels of CBD, THC, and their metabolites.

Depending on what they find, the researchers may decide to include subjects with other conditions, such as post-traumatic stress disorder. “With increasing levels of use of medical marijuana products in the U.S. today,” lead researcher Rajita Sinha, a Yale professor of psychiatry and neurobiology, said in a press release, “it is imperative that we understand the science of how these products are working to alleviate patient symptoms.”

Farrarese noted that “an English company has the only FDA-approved plant-based medical marijuana product in our market”: Epidiolex, an oral CBD solution made by GW Pharmaceuticals from cannabis the company grows in the U.K. Last year the FDA approved Epidiolex as a treatment for two rare forms of epilepsy. CTPharma hopes to follow in the British company’s footsteps, although the process may take three to seven years.

Meanwhile, CTPharma seems to have accomplished a first of its own. Farrarese says he is not aware of any other FDA-approved study using marijuana produced in the United States that does not come from NIDA. “I’m pretty sure it’s the first one,” he says.

from Latest – Reason.com https://ift.tt/2QcwmJz
via IFTTT