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One Law Prof's Opinion

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.

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Josh Marshall is editor and publisher of TalkingPointsMemo.com.