After my earlier post about Judge Lamberth dismissing the case seeking to enjoin government funding of ESCR, The Corner asked me to weigh in. I decided to focus in part on a pet peeve of mine—how policy today too often is decided by expediency, redefining terms, and refusing to enforce the law, than by proper and principled means.
First, I discuss the Dickey/Wicker Amendment that bars federal funding for destructive embryonic research—and how PresidenClinton got around it by having the actual destruction privately paid in anticipation of the Feds funding research thereafter, and how President Bush changed that approach. Then, I leave history and get to my primary concern. From my post:
Pres. Barack Obama returned to a Clintonesque approach, which received validation by a 2-1 Court of Appeals decision, claiming that separating embryo destruction done in anticipation of receiving federal funding thereafter is a “reasonable” interpretation of federal law. But it isn’t, not really. And therein lies the expediency. If the feds want to fund ESCR, Dickey/Wicker should either be amended to so permit or be allowed to expire. (Bush vetoed two attempts to do just that during his presidency.) Instead, even though the Democrats enjoyed supermajorities in both houses of Congress and had a pro-ESCR president in 2009, and had an overwhelming majority in the Senate in 2010, Dickey/Wicker was passed by Nancy Pelosi’s House and Harry Reid’s Senate, and signed by Obama — despite its potential to thwart funding of ESCR.
But they knew it was a safe bet: On an issue as hyper-politicized as ESCR, expediency pays. Thus, even though Lamberth was factually correct when he said that the destruction and subsequent research constituted “one transaction,” clear definitions and vital distinctions don’t much matter anymore in our politics or law. What counts is outcome, no matter how the statutory language or original legislative intent has to be bent.
Think about it: We now live in a society in which a president refuses to enforce federal law (DOMA) in courts, and who ran for election promising not to change federal law against state-legal medical marijuana, but not to enforce it either; and in which Jerry Brown, both now as California’s governor and earlier as its attorney general, has refused to defend a state constitutional amendment passed by the people (Proposition 8), because he thinks it is unconstitutional. And every day, presidents, legislators, and courts parse and distort language and clear meaning of legislative phrases and titles to obtain desired results. Indeed, we often see titles of bills claiming to do just the opposite of what is in the bill itself.
Thus, my major problem with this case isn’t about whether the feds will fund research, it is whether we any longer abide by the apparently archaic notion that wrong laws should be changed, not expediently ignored via redefinition or unenforced at all.
The rule of law is becoming a hollow shell in a postmodern milieu in which words have little firm meaning and principled approaches to policy to often matter less than doing whatever it takes to obtain the desired result.
