On presidents, agencies, and the stem cells between them: A legal analysis of president Bush's and the federal government's policy on the funding of research involving human embryonic stem cells

On August 9, 2001, President George W. Bush announced his policy on research involving human embryonic stem cells and proclaimed that federal funding would be allocated only to research involving human embryonic stem cell lines produced prior to his announcement (the Directive). Immediately thereafter, the National Institutes of Health (NIH) if announced that it would act in accordance and full compliance with the Directive and took action to implement it. Since then, the Directive has dictated the nature and extent of scientific research involving human embryonic stem cells. Yet, astonishingly, despite being the subject of a boisterous debate, the Directive's legality as well as the legality of the NIH's actions have never been questioned nor ascertained. This Article seeks to fill this gap. After analyzing the Directive and the NIH's ensuing actions in light of the NIH Revitalization Act of 1993 and the Administrative Procedure Act, this Article argues that the Directive and the NIH's actions taken to implement it were illegal. Based on this conclusion, the Article discusses the possible legal challenges that may be raised with respect to the Directive and the NIH's actions.