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The Real Message of Monday's Stem Cell Ruling

The August 23, 2010, decision of Royce C. Lamberth, chief judge of U.S. District Court in Washington, D.C, in Sherley v. Sebelius has legal significance for one main reason: it reasserts the principle, occasionally lost sight of, that laws passed by the Congress and signed by the president — good, bad, or indifferent — trump both executive orders and the actions of administrative agencies. It is hardly a novel principle, and its application here was proper. Judge Lamberth issued a preliminary injunction. That was done based on a substantial likelihood that the plaintiffs would prevail at trial on the merits, that the harm done to them by not issuing a preliminary injunction would be substantial, and that no substantial harm would be done to the defendants.

As noted by Judge Lamberth, the Dickey-Wicker Amendment to the 1996 Balanced Budget Downpayment Act:

[P]rohibited the use of federal funds for “(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations.

Presumably, subparagraph (2) was included to prohibit federal funding for the stated type of research and not to meet some requirement that statutes must have more than a specified number of words. In the present case, the embryos being used were not created for research purposes; they were a byproduct of the in vitro fertilization process. They were, however, destroyed in the process of the subsequent research.

The Dickey-Wicker rider has been included in every appropriations bill for Health and Human Services since 1996. In 1999, the Department of Health and Human Services concluded (rather oddly) that human embryonic stem cells (“ESCs”) are not covered by the Dickey-Wicker rider. As Judge Lamberth’s decision notes:

On August 9, 2001, President Bush announced a policy statement on stem cell research that limited federal funding for research on ESCs. … Specifically, the President prohibited federal funding for research on ESCs that were created after the date of the policy statement. … Federal funding remained available, however, for research on ESCs that were created by private researchers prior to his policy statement. (Id.) The President formalized this policy statement in Executive Order No. 13,435, which provided federal funding for IPSC research and left the limitations on ESC research unchanged. (emphasis added.)

Did President Bush screw up in permitting at least arguable violations of the Dickey-Wicker rider through continued federal funding of research using human embryonic stem cells created after the date of his 2001 policy statement? I don’t know. Maybe he did:

On March 9, 2009, President Obama, by executive order, removed President Bush’s limitations on ESC research in order “to expand NIH support” for human stem cell research and “to enhance the contribution of America’s scientists to important new discoveries and new therapies for the benefit of humankind.”

Important new discoveries and benefits to humankind are often good; that’s beside the point. Regulations were then adopted which “require … that research involves only ESCs that were derived from human embryos that:

[W]ere created using in vitro fertilization for reproductive purposes and were no longer needed for this purpose” and “were donated by the individuals who sought reproductive treatment … and who gave voluntary written consent for the human embryos to be used for research purposes.”

In effect, President Obama deleted subparagraph (2) of the Dickey-Rider Amendment. That was not within his presidential powers and probably wasn’t within President Bush’s presidential power back in 2001 either.

There are several points to be kept in mind. First, the Dickey-Wicker rider affects only federally funded research. Second, the rider is clear. Third, the Congress can change it by enacting legislation and the president can sign the new legislation into law. Neither the president acting alone nor an administrative agency can change such things — for ideological, practical, political, or other reasons including that God told them to or that they just happen to want to.

In addition to the legal questions involved, the question of what is done to human embryos and their cells seems to be ideologically and religiously important. The Sherley v. Sebelius decision dealt neither with religion nor ideology. The plaintiffs were originally held by Judge Lamberth to lack standing to bring their lawsuit — that is, they were not directly and particularly harmed by it. That decision was overturned by the Court of Appeals for the D.C. Circuit earlier this year. They claimed, and were held by the appellate court to have, standing because they performed research using a different type of stem cell, those found in tissues normally discarded after birth, such as the umbilical cord, and in the body. Federal funding for their species of research is not covered by the Dickey-Wicker rider and they were competing for federal funding. Whether the plaintiff’s motivations for filing suit were purely monetary or had ideological or religious components is not apparent from the text of Judge Lamberth’s decision, nor is there any apparent reason why it should be.

As noted in this article, David S. Tatel of the D.C. Circuit delivered an address to attorneys and others from the Environmental Protection Agency observing:

As its most fundamental inquiry, administrative law calls upon courts to determine whether an agency’s action falls within the scope of its authorizing legislation. This task often involves no more than reading the law. Then‐Professor Felix Frankfurter, one of the fathers of administrative law, famously admonished his students: “(1) read the statute; (2) read the statute; (3) read the statute!” This is self‐evidently good advice, but you’d be surprised how often agencies don’t seem to have given their authorizing statutes so much as a quick skim. … After all, agency authority comes only from Congress. If the agency can’t reasonably trace its action to a statute, it has no business acting. Although agencies are more accountable than courts, Congress is more accountable still.

Judge Tatel’s words, or at least Frankfurter’s, should probably be tattooed on the foreheads of all attorneys.

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