Proposed NIH Funding Changes Raise Practical and Legal Questions

How Would the New NIH Grant Review Process Work?

It is not clear how the proposed system would work in practice. During the Biden administration, the National Institutes of Health awarded more than 64,000 grants annually. Mr. Vought and Mr. Bhattacharyya may also have other responsibilities as heads of their respective government agencies, making it difficult for them to seriously evaluate every proposal.

The committee would likely act only after an initial funding decision had been made. However, without a system for transferring funds to other grants, the NIH could be unable to spend money Congress appropriated—which may be Mr. Vought’s intention.

Changes to NIH Peer Review Could Complicate Funding Decisions

Historically, the NIH has awarded grants based on scientific merit scores assigned by expert reviewers. That process provides an obvious way to redirect funding from rejected grants to the highest-quality proposals that were not initially funded.

However, Mr. Vought is also seeking to limit the use of peer review in grant evaluations. As a result, it is unclear whether the existing process for identifying high-quality unfunded proposals would remain in place.

Why the NIH Funding Measure Could Face Legal Challenges

Ultimately, the measure will almost certainly be rejected by the courts because it appears to meet the key criteria for unlawful administrative action: it is arbitrary and capricious. The policy does not solve an apparent problem, is not required by law, and would be difficult to justify legally. The position that “Vought wants to block NIH spending” is not, by itself, a legally sufficient justification.

For the policy to reach court, however, someone must first show that they have suffered enough harm to bring a lawsuit. As with many other executive actions, that requirement means a pending executive order could cause significant damage before the courts intervene.