One Law Prof’s Opinion


TPM Reader JW chimes in on the stem cell decision …

I don’t know much about stem cells, but I know a lot about administrative law (which I’m gearing up to teach again this semester), and I’ve read the opinion. It’s true that if this ruling holds up, then it changes the legal terrain dramatically — Lamberth is saying that no government money can support stem cell research until Congress enacts a budget without the Dickey-Wicker language. But there are two big caveats in order here. Quickly:

First, from a legal standpoint, Lamberth’s ruling is quite vulnerable; it’s not on solid ground at all. Congress has prohibited the expenditure of federal money on “research in which a human embryo [is] destroyed.” Lamberth says that covers all embryonic stem cell research — even the research of person B where person A created a cell line (and destroyed an embryo) in 1990 using private money, and person B in 2010 is seeking federal funds to study cells deriving from those A created — because *any* work on that cell line should be deemed part of a single indivisible stream of “research in which a human embryo [is] destroyed.” But in order for plaintiffs to win here, it’s not enough that Lamberth reads the statute that way. Because of the *Chevron* rule of deference to agency statutory interpretation, Lamberth has to find that this is the *only* possible (and reasonable) interpretation of the statutory language — and so he does, finding that the statute unambiguously means what he says and nothing else. But — to me — that’s really unconvincing. It seems to be that yeah, one reasonable person could read the statute as Lamberth does — but a different reasonable person could have no trouble concluding that person B, in my hypo above, is *not* conducting “research in which a human embryo [is] destroyed.” And in that situation, under *Chevron*, the government has to win. So I’d say that Lamberth’s ruling is vulnerable to reversal.

One more point worth noting is that the political dynamics here of seeking a legislative fix are different than usual because Dickey-Wicker, as a budget rider, has to be re-enacted every year — it’s not a piece of embedded legislation that Congress would have to enact new legislation to repeal.


Josh Marshall is editor and publisher of