IN RE AIKEN COUNTY
645 F.3d 428 (2011)
United States Court of Appeals, District of Columbia Circuit.
Argued March 22, 2011.
The agency budget encompasses the licensing board, so if there is no money for the program, there is no money for licensing activities and for the licensing board itself . . . Our overall focus is on closing out our review of the license application, and so that includes the licensing board, it includes everything that is involved in that. If there were unresolved legal questions, they would stay unresolved legal questions.
Steve Tetreault, NRC Chairman Says Yucca Mountain Closeout to Include License Panel, LAS VEGAS REV. J., Feb. 2, 2011 (quoting Greg Jaczko). But Petitioners simply do not press this agency inaction claim. Despite months of extensive briefing and protracted questioning at oral argument, Petitioners still see only the President and his administration obstructing their path to judicial review. Nietzsche once remarked that "many are stubborn in pursuit of the path they have chosen, few in pursuit of the goal." Such stubbornness may snatch defeat from the jaws of victory.
KAVANAUGH, Circuit Judge, concurring:
"No one doubts Congress's power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws." Free Enterprise Fund v. Public Co. Accounting Oversight Bd., [ ___ U.S. ___] 130 S.Ct. 3138, 3155-56 [177 L.Ed.2d 706] (2010).
"The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman's lament, to persuading his unelected subordinates to do what they ought to do without persuasion. In its pursuit of a workable government, Congress cannot reduce the Chief Magistrate to a cajoler-in-chief." Id. at 3157 (internal quotation marks, citation, and alteration omitted).
Who in the Executive Branch is ultimately responsible and accountable for deciding whether to terminate the project for storing nuclear waste at Yucca Mountain? Under the text of the Constitution, the answer seems simple: the President of the United States. But it is not so simple. This case illustrates the point. Given the importance and bitterness of the underlying dispute over Yucca Mountain, I think it I
worth exploring how we got here, constitutionally speaking.