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IN RE AIKEN COUNTY
645 F.3d 428 (2011)
United States Court of Appeals, District of Columbia Circuit.
Argued March 22, 2011.
President Roosevelt wanted to direct and supervise the Federal Trade Commission in the exercise of its statutorily assigned duties and discretion. In 1933, shortly after taking office, he therefore fired Commissioner William Humphrey, who disagreed with the President's views on antitrust and competition issues. Humphrey sued, arguing that under the FTC
statute he could be removed only for cause, not at will, and that policy disagreement did not constitute a sufficient basis to be removed for cause. For his part, the President argued that he must be able to remove subordinate executive officers at will in order to exercise the executive power and take care that the laws be faithfully executed. He contended that the statutory restriction on removing Humphrey was unconstitutional under Article II of the Constitution and the Court's landmark decision nine years earlier in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). In Myers, Chief Justice and former President Taft wrote a lengthy opinion for the Court holding that the President possessed the constitutional authority to cause the removal of subordinate officers in the Executive Branch. Notwithstanding the text of Article II and Myers, the Supreme Court in Humphrey's Executor sided with Humphrey and ruled that President Roosevelt acted illegally when he fired Humphrey. The Humphrey's Executor Court determined that the President's "simple disagreement with the [independent agency's] policies or priorities" did not "constitute `good cause' for . . . removal." Free Enterprise, 130 S.Ct. at 3157. Humphrey's Executor thus approved the creation of "independent" agencies— independent, that is, from presidential control and thus from democratic accountability. See Humphrey's Executor, 295 U.S. at 628, 55 S.Ct. 869 (independent agencies "cannot in any proper sense be characterized as an arm or an eye of the executive"); Buckley v. Valeo, 424 U.S. 1, 133, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ("The Court in [Humphrey's Executor] carefully emphasized that . . . the members of such agencies were to be independent of the Executive in their day-to-day operations. . . ."); see also Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 916, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part) ("independent regulatory agencies" are "specifically designed not to have the quality . . . of being subject to the exercise of political oversight and sharing the President's accountability to the people") (internal quotation marks and alteration omitted); Mistretta v. United States, 488 U.S. 361, 411, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (statutory provisions restricting presidential removal of agency heads are "specifically crafted to prevent the President from exercising `coercive influence' over independent agencies").1 Humphrey's Executor is perhaps best explained by the fact that it was decided in 1935 on what became known as Roosevelt's "Black Monday." It was one in a line of decisions issued in 1935 and 1936—including two others on the same day as Humphrey's Executor—by a Supreme Court seemingly bent on resisting President Roosevelt and his New Deal policies. See Geoffrey P. Miller, Independent Agencies, 1986 SUP.CT. REV. 41, 93 ("Humphrey's Executor, as commentators have noted, is one of the more egregious opinions to be found on pages of the United States Supreme Court Reports."). The other cases in that
line have long since been discarded as relics of an overly activist anti-New Deal Supreme Court. See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (backing away from prior opinions that had expanded non-delegation doctrine); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (backing away from prior cases that had narrowly interpreted Commerce Clause); see also West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (backing away from prior decisions that had aggressively used substantive due process doctrine to overturn state legislation). But Humphrey's Executor survived. And it lives on. IIBecause of Humphrey's Executor, the President cannot remove an independent agency's officers when the agency pursues policies or makes decisions the President disagrees with. Because the power to remove is the power to control, the President lacks control over an independent agency—that is, the President lacks the power to direct or supervise an agency such as the Nuclear Regulatory Commission. To be sure, the President has power to cajole. The President also has the power to periodically appoint independent agency heads when the terms of old independent agency heads expire. But the President's power to cajole or to appoint—when not accompanied by the power to remove—is not the power to direct, supervise, or control, as a President or one who has worked for a President could readily explain. As the Supreme Court has stated: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); see also Elena Kagan, Presidential Administration, 114 HARV. L.REV. 2245, 2308-09 (2001) ("When the independents were involved, [the President] acted not as the commander, but as a simple petitioner of the administrative state. Any other approach often would have proved futile (and therefore embarrassing): [The President], after all, had appointed only a subset of the commissioners, could remove none of them, and lacked any claim recognized in either the legal or the political sphere to their submission.").
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.
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