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
worth exploring how we got here, constitutionally speaking. I
1. At oral argument, the DOE suggested that the three-year deadline should toll from September 15, 2008, the date when the application was docketed, rather than from when the application was submitted. We offer no opinion on the correctness of that suggestion, but note that in either case, the deadline for the Commission to act is at hand.
1. The question of presidential control over agencies is distinct from the question of the executive power vis-à-vis congressional power: "The unitary executive theory merely means that truly executive power is concentrated in the President; the theory alone does not specify what counts as executive power in the first place." Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes to Practice, 120 HARV. L.REV. 65, 69 n. 16 (2006). For example, one could believe, as Chief Justice Taft and President Roosevelt did, that the President must have the authority to control subordinate officers in the Executive Branch and at the same time could believe that the War Powers Resolution, which limits the President's power to wage war without congressional approval, is constitutional.
2. One theory behind making agencies such as the Nuclear Regulatory Commission independent instead of executive was that independent agencies would make only "expert" scientific decisions and that such expert decisions should be made in an apolitical way. But those independent agencies also have to make a slew of non-scientific legal and policy judgments—such as how to interpret governing statutes, how to exercise policy discretion under those statutes, and whom to charge for violations of the law. Those legal and policy decisions generally cannot be resolved simply by scientific formula. Moreover, executive agencies such as EPA and FDA often have to make the same kinds of expert scientific decisions as independent agencies, yet those agencies have not been made independent. An agency's status as an executive agency does not preclude it from developing and operating with customary independence, such as the Attorney General and Solicitor General possess with respect to many decisions. But the President remains accountable for those officers' decisions. And the President has the legal authority to make the final decisions. There is no doubt, for example, that the Attorney General reports to the President, not the President to the Attorney General. Last Term in Free Enterprise, the Supreme Court noted: "One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders." Free Enterprise Fund v. Public Co. Accounting Oversight Bd., ___ U.S. ___, 130 S.Ct. 3138, 3156, 177 L.Ed.2d 706 (2010).
3. The oddity of the situation is apparent in the Government's brief in this case. The Department of Justice filed a single brief for the Department of Energy and the Nuclear Regulatory Commission. But the brief includes chestnuts such as this: "Because the Commission has not reached a decision on the motion to withdraw [the Yucca Mountain license application], NRC does not join the merits-based arguments set forth in this brief on behalf of DOE. . . ." Gov't Br. at 7.
4. In this case, the issue created by Humphrey's Executor is that the President's decision on the Yucca Mountain issue is not the final word in the Executive Branch. In other cases, the issue created by Humphrey's Executor is that it allows Presidents to avoid making important decisions or to avoid taking responsibility for decisions made by independent agencies. When independent agencies make such important decisions, no elected official can be held accountable and the people "cannot `determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.'" Free Enterprise, 130 S.Ct. at 3155 (quoting THE FEDERALIST No. 70 (Hamilton)).
5. Importantly, as Free Enterprise itself illustrated, Humphrey's Executor is not necessary to the existence of any particular agency. Rather, Humphrey's Executor affects only the accountability of the agencies and the control the President exercises over them. As Free Enterprise ruled, therefore, the remedy for holding an independent agency unconstitutional under Article II is not to abolish the agency. See 130 S.Ct. at 3161-62. Rather, the remedy is simply to ensure that the agency is more accountable to the people by giving the elected and accountable President greater control over the agency (by making the heads of agencies removable at will, not for cause). Similarly, if President Roosevelt had prevailed in the Humphrey's case itself, the Federal Trade Commission would not have disappeared. Rather, the agency simply would have become accountable to the President and thus to the people. Although Humphrey's Executor is sometimes criticized by those who oppose the size and scope of the modern administrative state, the case is a mistaken target for that criticism. Humphrey's Executor does not affect the size and scope of the administrative state. Rather, Humphrey's Executor affects the democratic accountability (or lack thereof) of the independent agencies within the administrative state.
6. Justice Kennedy did not take a position on this issue in Fox.
7. There is one post-Humphrey's case in which the Court suggested that there could be such a thing as an implied independent agency. See Wiener v. United States, 357 U.S. 349, 353-56, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958). Assistant Attorney General Dellinger for the Office of Legal Counsel later opined that the "rationale of Wiener, which is essentially that Congress must have implied a for-cause removal restriction when the Court believes that the functions of the agency demand such tenure protection, seems questionable." The Constitutional Separation of Powers Between the President and Congress, 20 Op. Off. Legal Counsel 124, 168 n. 115 (1996) (citation omitted). Whether Wiener applies to the SEC and FCC, for example, is a question that would need to be confronted if Justice Breyer's inquiry were further pursued.