Sherley v. Sebelius: Interpreting the statute’s use of the present tense

This, belatedly, is the third installment of my discussion of the court-of-appeals decision in Sherley v. Sebelius, which reversed the lower court’s conclusion that the federal government is forbidden from funding research on human embryonic stem cells. The first two installments are here (part 1) and here (part 2); you should read them first if you haven’t done so already or if they’ve faded from your memory. (As before, I’ll note that I represent the Genetics Policy Institute as an amicus curiae in the case, supporting the government.)

One of the points of disagreement between the majority opinion and the dissent was over how to interpret the Dickey-Wicker Amendment’s use of the present tense (“research in which a human embryo or embryos are destroyed…”). The dispute arises because a line of stem cells derived from a particular embryo can be kept in existence indefinitely and as a result can provide stem cells for research that is performed many years later. For example, under the Bush-administration guidelines, federal funding was available only for research projects that used stem cells that had been derived before August 9, 2001, when the Bush policy was announced. And NIH maintains a registry of stem-cell lines that qualify for use in federally-funded research. There is therefore a good chance that an applicant seeking NIH funds will use stem cells from a preexisting cell line.

The majority rejected the plaintiff’s argument that the government may not fund research using such a preexisting line of stem cells, and in doing so the  Dickey-Wicker Amendment’s use of the present tense played a big part:

 The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides “unless the context indicates otherwise … words used in the present tense include the future as well as the present.” 1 U.S.C. § 1. As the Supreme Court has observed, that provision implies “the present tense generally does not include the past.” Carr v. United States, 130 S. Ct. 2229, 2236 (2010). The context here does not, as our dissenting colleague would have it, indicate a different understanding. To the contrary…NIH funding decisions are forward-looking, requiring the NIH to “determine  whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected.

As a generalization about the English language, the statement that “the present tense generally does not include the past” isn’t exactly correct, but it’s close enough for government work. By which I mean that while there are in fact ways of using the present tense that “include the past,” it’s eminently reasonable to read the Dickey-Wicker Amendment as not using the present tense that way.

Most of the ways in which the use of present tense can encompass past time are irrelevant to interpreting Dickey-Wicker:

  • The “historic present” which is used in narration:

A priest, a minister, and a rabbi walk into a bar…

  • The “hot-news present,” which is used in newspaper headlines and the like:

Dewey Defeats Truman.

  • “Past evidential use with verbs of communication”:

I hear we’re getting some new neighbors.

  • Present tense used in a chronology of events:

1939    Germany invades Poland.
1941    Japan attacks Pearl Harbor.
1944    Allies launch D-Day assault.
1945    Germany and Japan surrender.

  • Present tense used in captions to photos, etc.:

Barack Obama, above left, takes the oath of office.

  • “Focus on present existence of works created in the past:”

Jane Austen uses a sharp satiric wit to expose follies, hypocrisies, and false truths.

  • Present tense used with respect to states or habitual actions:

Paris is in France.
I take the subway to work.

  • Present tense used to express “eternal truths”:

One plus one equals two.
Honesty is the best policy.

[Hat tip to CGEL for some of the descriptions and examples.]

The Dickey-Wicker Amendment’s use of the present tense obviously doesn’t fall into any of these categories.

However, there is another use of the present tense as including past time that is more pertinent—the use of the present tense in generic statements (Water is wet.) You’ll remember from the previous post about Sherley that the plaintiffs (as well as Judge Lamberth in the district court and Judge Henderson in the court of appeals) were implicitly interpreting the word research in the Dickey-Wicker Amendment as being used generically. So under that reading, the Amendment could plausibly be read as prohibiting funding of research on stem-cell lines that were already in existence when the funding was sought.

But you’ll also recall that research can also be used nongenerically, which means that the statute is ambiguous. And that, in turn, means that the courts have to defer to the government’s interpretation as long as that interpretation is reasonable. I.e., tie goes to the government.

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