Monthly Archives: April 2016

Balkanization – SCOTUS Style

Within an hour of the announcement of the death of Supreme Court Justice Antonin Scalia, Senate majority leader Mitch McConnell announced that there would be no hearings to replace Scalia until after the elections in the fall. His argument is that we should await the decision of the American people as to the next president before deciding on a replacement Justice.

The constitution is clear that the President of the United States selects nominees for the court with the advice and consent of the Senate. What is not clear is how to select a new justice if the senate refuses to hold hearings on a presidential nominee.

There are a number of “what ifs” built into the constitution and its amendments. If the president dies or becomes incapacitated, we have a vice-president at the ready. Three successive congressional acts have defined a presidential succession that goes well beyond the vice president. If there is no majority of votes cast in the electoral college, the election goes to the House of Representatives. If congress doesn’t like the actions of a president s/he can be removed through the impeachment process. If a tie vote occurs in the Senate, the Vice-President as casts a tie breaking vote.

There is however no mechanism to force a recalcitrant senate to act to confirm a selection to the supreme court. For that matter the senate could refuse to confirm any federal judge appointment, essentially abolishing the federal courts by attrition.

When the court is short one member, the possibility of a tie exists. In the case of a tie there is no decision. The previous appeals court decision stands. The death of Scalia has already changed things. In a recent civil action, Dow Chemical decided to pay an 835 million dollar settlement in an antitrust price-fixing case that it had lost in lower courts and that was on the Supreme Court’s docket. (A 4-to-4 tie at the Supreme Court would have left the lower court’s decision in place, including a judgment in excess of a billion dollars against Dow.

A serious problem exists now because tied decisions mean that the circuit court decision stands, but only for that circuit court, of which there are 12 (Arkansas is in the 8th circuit.) Tied decisions mean no decisions, it is as if there were no supreme court only the 12 regional circuit courts. There can be no consistent federal law throughout the nation as long as tie votes are possible.

With only eight justices on the court, and the possibility of tie decisions, we have a situation which “Balkanizes” federal law (Balkanization is a term which refers to a condition when one political unit fragments into several smaller units, especially when there are political differences among the smaller units. It refers to the Balkan Peninsula in the 19th century when the Ottoman Empire collapsed into a number of smaller often hostile nation states.)

Right now it is not the United States of America, but rather the “Amalgamated 12 Different Regions of America.”

Chronic Wasting Disease

Last month Arkansas Game and Fish confirmed that a deer found dead near Ponca, Ar and an elk taken by a hunter were both found to have Chronic Wasting Disease (CWD). This ultimately fatal disease is not yet known to be transmissible to humans who consume the flesh of an infected animal. It is the same disease which showed up in Great Britain years ago, called Mad Cow Disease. In sheep, where the disease has been known for centuries, it is called Scrapie. In the remote highlands of New Guinea, warring tribesmen spread the same disease, known as Kuru, through ritual cannibalism. There is even a heritable form called Creutzfeldt-Jakob Disease (CGD.)

The assemblage of diseases are collectively known as transmissible spongiform encephalopathies (TSE.) What that means is that one may get it from eating the flesh of an infected animal and over time fatally damages the brain. The really unique thing about prion diseases is the nature of the infectious component of disease transmission.

With every other kind of transmissible disease from the common cold to the plague, from warts to ebola, transmission requires an organism such as a bacteria, or at least a virus. These agents replicate by well understood mechanisms involving DNA. Reproduction is necessary to create enough of the organism in a body to do it harm.

Stanley Prusiner won the Nobel Prize in Physiology or Medicine in 1997 for “his discovery of prions – a new biological principle of infection.”

As noted Scrapie has been known for centuries. Sheep farmers knew that the disease could be spread from one animal to another in a herd, although it may take years between infection and the presentation of symptoms in an infected animal. By the 1950s and with an awareness of the modern germ theory of disease, the cause of Scrapie was thought to be a viral. Because it took a long time for symptoms to present it was called a slow virus.

Prusiner began studying the disease in the ’70s. It was known that the disease could be spread from on organism to another via extracts of diseased brains tissue. What Prusiner discovered however was that when these extracts were treated with agents that destroyed DNA and RNA – nothing happened – the extracts were still infectious. This was previously unheard of. At first it was thought that a new kind of life (an organism) that replicated without DNA. Not so.

The infectious agent isn’t an organism, it is a simple molecule that already exists in all of us, quite possibly all multicellular organisms. Prions are proteins. Proteins all have unique three dimensional shapes. Prions are nothing more than a misshapen protein, except their misshapen form causes normally shaped protein to become similarly misshapen. The “bad” form catalyzes the change from the normal to the bad shape. Brain tissue riddled with the badly shaped protein take on a sponge-like appearance, with the loss of normal brain function.

The protein is found not only in brain tissue but virtually all nervous tissue. Consumption of any flesh of an infected animal, even an asymptomatic one carries a risk of contracting a lethal disease. Thorough cooking which normally destroys the usual infectious agents may not suffice to destroy the prion.

Get the Lead (Pb) Out.

Professor Plum – did it in the kitchen – with the lead pipe. This could have been an outcome in the old board game, Clue. In reality and recent times it was the the emergency manager in Flint Michigan, with the lead pipes in the cities antiquated distribution lines.

Back to Flint, Michigan later, but first a brief history and discussion of the toxic nature of lead. Lead is the quintessential example of the class of elements know as heavy metals. Other toxic heavy metals include Mercury and Cadmium. Heavy metals generally share a capacity to cause nerve damage in both peripheral and central nervous systems. The element symbol, Pb, comes from the Latin Plumbum, which is also the root of the English words plumber, and plumb-line.

Lead has been in common use for centuries. Lead glaze in pottery has been dated to circa 4000 BCE in Egypt. It is a dense, relatively non oxidizing (won’t “rust” like iron) malleable material. Among its many uses are jewelry, solder, lead pipes, batteries, and of course the most toxic form-bullets. In various chemical combinations it has been used as durable paint pigment, and an anti-knock agent for gasoline. In ancient Rome a chemical compound of lead was used to sweeten wine. Not surprisingly the compound’s common name is sugar of lead, made by dissolving lead in vinegar to get lead acetate.

Lead came into use about the time of the iron age, but may have preceded iron as it is easier to smelt from its ore, Galena. It’s toxicity has also been known from ancient times. Acute lead poisoning is rare, but chronic poisoning was common. The forerunners of modern chemists were the alchemists. They for reasons know only to them associated some elements with planets. Lead was connected to Saturn. The word saturnine is an adjective meaning slow, gloomy, taciturn, even cynical. These describe nicely the early symptoms of lead poisoning. Further progression of poisoning involves damaged memory, confusion, and tremors. Some of these symptoms can be irreversible.

Chronic lead poisoning is at its most insidious when children are involved. If items with any lead content are in the presence of a toddler, it will likely end up in the child’s mouth. Lead based paint was common, and the toxicity known since early in the 20th century. A painted window sill is the perfect spot for a teething toddler. Regulation of the industry was resisted for decades, the industry blamed the parents for not keeping toys, window sills, etc out of the mouths of children.

The most recent example of lead poisoning in children takes us back to Flint, Michigan. The collapse of the auto industry and other financial troubles lead the state to take over management of the city. An emergency manager with broad authority to manage the city budget caused (or allowed) the city to switch their water supplier from properly treated Lake Huron water to untreated water from the Flint river. This untreated water flowed through the city’s lead pipe distribution system. Proper treatment can prevent leaching, but it wasn’t done. Subsequently as many as 10,000 children have been identified as having toxic levels of lead in their blood. Many could suffer permanent kidney, liver, and brain damage.