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Blame To Go Around

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Royce Lamberth is the kind of judge — because of his crusades and inflammatory pronouncements on behalf generally but not exclusively reactionary positions — who tends to get described as an “iconoclast.” Earlier this weak, Lamberth issued a ruling blocking Obama’s executive order permitting more extensive cell research, finding that there was at least a substantial probability that the order was illegal. Will Saletan is outraged:

But this ruling goes way beyond Obama. It voids Bush’s stem-cell policy, too. And it does so on flimsy grounds with sloppy reasoning.

[…]

So in two successive Congresses—the first controlled by Republicans, the second by Democrats—the president and a majority of each chamber agreed that ESC research should be funded. They did so even as they re-enacted the Dickey Amendment each year. To conclude that in re-enacting this amendment they meant to forbid all federal funding of ESC research, you’d have to believe that they deliberately contradicted themselves four times. To conclude, as Lamberth does, that they “unambiguously” meant to forbid all such funding, you’d have to be brain-dead. At a minimum, if their behavior is self-contradictory, the meaning of the amendment since 2005 has become ambiguous.

I’m sympathetic to Saletan’s argument here. Certainly I agree with him on the merits of the underlying issue, and I do think that Lamberth can be subject to his criticism — depending on how much deference you think should be given to executive branch interpretations, one can argue that his ruling is erroneous. Some people may want to argue that he shouldn’t have granted standing, although I personally never object to granting standing if there’s a substantial argument that the government is engaged in illegal activity. But I think Saletan is overlooking the real villain of his story: George W. Bush.

The brutal truth is that Lamberth’s ruling is not unreasonable; it’s at least plausible to read the Dickey-Walker amendment as banning stem-cell research. As Saletan notes, majorities of both houses of Congress wanted to eliminate this potential contradiction. But Bush — whose public positions on stem cell research are incoherent from A to Z — decided, with the half-clever pandering to wingnuts and indifference to legal constraints that made him infamous, to veto a repeal of Dickey-Walker and instead just declared that it didn’t mean what it seemed to mean.   This put him in a position where he didn’t actually have to apply the highly unpopular principles he wanted to be seen as endorsing. But by allowing the tension between the statute and his subsequent executive order to remain, Bush all but invited the judiciary to intervene — and now they have.

As Saletan correctly points out, if we had a functional political system, this would be a non-issue because Congress could just pass a new statute clarifying the policy. Whether this will happen with the political system we actually have is another question. But certainly this case reminds me why I don’t miss Bush in the least.

UPDATE:  As Glenn helpfully points out in comments, Lamberth actually ruled against standing; it was the higher court that reversed him and reinstituted the suit.

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