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September 3rd, 2010

Federal Funding For Stem Cell Research?

By Nathan Tucker
Recently, U.S. District Court Judge Royce Lamberth, sitting on the federal trial court in Washington, D.C., issued a preliminary ruling that federal funding could not be used for research on human embryonic stem cells.  On August 9, 2001, President George W. Bush had prohibited the use of federal funding for research on embryonic stem cells created after his policy went into effect, though such funds were available for preexisting cell lines.

President Obama lifted that ban on March 9, 2009, in order to, in his words, “enhance the contribution of America’s scientists to important new discoveries and new therapies for the benefit of humankind.”  Judge Lamberth found this executive order to violate the Dickey-Wicker Amendment, a rider to the Balanced Budget Downpayment Act of 1996.

The Dickey-Wicker Amendment, which has been included in every appropriation bill for the Department of Health and Human Services since 1996, prohibits 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.

Ruling that, in passing the Dickey-Wicker Amendment, Congress had prohibited the use of federal funds for researching embryonic stem cells, Judge Lamberth issued a preliminary injunction enjoining President Obama’s executive order.  The court did not hold that Congress could not provide such funding; only that it had specifically decided not to and the President is therefore bound by that decision.

But in doing so, however, Judge Lamberth overlooked the initial, fundamental question every judge (and politician) must ask—does the federal government have the power to do what it is attempting to do.  In other words, with or without the Dickey-Wicker Amendment, does the federal government have the power to fund embryonic stem cell research?  This essential, basic question has been lost in the debate over the media acclaim for the desirability of such research, or at least the promised results it is supposed to yield.

The answer is clear and unambiguous—the federal government does not have the constitutional authority to spend money on stem cell research, or any medical research of any kind.  Even if there was universal consensus that such funding was moral and appropriate, Congress lacks the power under the Constitution to do anything about it.

In Federalist No. 39, James Madison wrote: “[T]he proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

Because the federal government is composed of – and constrained by – enumerated powers, then the power to fund medical science would have to be one of the powers specifically given to it in the Constitution.   But out of the 17 named powers given to Congress in Section 8 of Article 1, none mention anything about medicine, science, health care, or anything else approaching an enumerated power that would allow Congress to provide for federal funding of stem cell research.

Doubtless, proponents of such funding will argue that Congress has broad authority to spend for the “general welfare” under the Congress’ enumerated tax and spend power.  The Tax and Spend Clause reads in part, “[T]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

But to read the term “general welfare” in the clause to be a broad grant of authority to Congress to tax for whatever purposes it deems are in the general welfare of the country would be to make a mockery of the Constitution. Such a broad grant of authority would eclipse a written constitution of enumerated specific, limited powers given to the federal government.

As Thomas Jefferson explained, “[T]he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. [Congress is] not to lay taxes ad libitum for any purpose they please.”

Madison also noted: “Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.”

Rather than simply holding that President Obama’s executive order violated the Dickey-Wicker Amendment, Judge Lamberth should have gone back to first principles and ruled that the federal government was utterly without constitutional authority to authorizing such funding even if it had wanted to.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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