Stem Cell Ruling Will Not Hold Politically; Times Blows Reporting

Update: Stem Cell Ruling Will Be Appealed

via mal contends

There is cause for optimism in the news of the temporary injunction on President Obama’s expanded embryonic stem cell research policy as legal and political remedies appear attainable.

But first:

NYT Goofs

Chief Judge Royce C. Lamberth of the D.C. Federal District Court ruling is being ridiculed in the New York Times, but the Times misreports the language of the ruling.

The Times blew this one.

Lamberth "wrote that his temporary injunction returned federal policy to the 'status quo,' but few officials, scientists or lawyers in the case were sure Monday night what that meant," reads this morning's NYT.

How does a policy [or anything] "return" to the status quo?

But Lamberth is not guilty of this non sequitur in his administrative law ruling.

Actually, what Lamberth writes is: "The injunction, however, would not seriously harm ESC [human embroyic stem cells] researchers because the injunction would simply preserve the status quo and would not interfere with their ability to obtain private funding for their research."

Ideological Administrative Law Ruling Meets Public Opinion

The case, (Sherley v. Sebelius [No. 1:09-cv-1575 (RCL]), and the ruling granting an injunction will likely play into the November elections as an issue demonstrating that stell cell research enjoys wide popular support.

Elsewhere, Talking Points Memo offers the following analysis of Lamberth's ideological and subjective ruling that is long on assertion and short on reasoning and argumentation:

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.