In Re Aiken County

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2011 Decided July 1, 2011

No. 10-1050

IN RE: AIKEN COUNTY ,

PETITIONER

On Petitions for Declaratory and Injunctive Relief, Petitions

for Extraordinary Relief, and Petitions for Review

Consolidated with 10-1052, 10-1069, 10-1082

Andrew A. Fitz, Assistant Attorney General, Office of the

Attorney General for the State of Washington, and Barry M.

Hartman argued the cause for petitioners. With them on the

briefs were Thomas R. Gottshall, Alexander Shissias, S. Ross

Shealy, Alan Wilson, Attorney General, Office of the Attorney

General for the State of South Carolina, Robert M. McKenna,

Attorney General, Office of the Attorney General for the State

of Washington, Todd R. Bowers, Assistant Attorney General for

the State of Washington, Christopher R. Nestor, William Henry

Davidson II, Kenneth Paul Woodington, James Bradford

Ramsay and Robin J. Lunt.

Michael A. Bauser and Anne W. Cottingham were on the

brief for amicus curiae Nuclear Energy Institute in support of

petitioners.

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Ellen J. Durkee, Attorney, U.S. Department of Justice,

argued the cause for respondents. With her on the brief were

Robert Dreher, Principal Deputy Assistant Attorney General,

Lisa E. Jones, Aaron P. Avila, and Allen Brabender, Attorneys,

U.S. Department of Justice, John F. Cordes Jr., Solicitor,

Nuclear Regulatory Commission, Charles E. Mullins, Senior

Attorney, Nuclear Regulatory Commission, and Jeremy M.

Suttenberg, Attorney, Nuclear Regulatory Commission.

Martin G. Malsch, Charles J. Fitzpatrick, and John W.

Lawrence were on the brief for intervenor State of Nevada in

support of respondents.

Before: SENTELLE , Chief Judge, BROWN and KAVANAUGH ,

Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE .

Concurring opinion filed by Circuit Judge BROWN .

Concurring opinion filed by Circuit Judge KAVANAUGH .

SENTELLE , Chief Judge: Three state and local governmental

units, along with individual citizens, petition this court for

review of and other relief from two “determinations” made by

the Department of Energy (“DOE”) and the other respondents:

the DOE’s attempt to withdraw the application it submitted to

the Nuclear Regulatory Commission (“NRC” or the

“Commission”) for a license to construct a permanent nuclear

waste repository at Yucca Mountain, Nevada; and the DOE’s

apparent decision to abandon development of the Yucca

Mountain nuclear waste repository. Because we believe that

Petitioners’ two claims are, respectively, not ripe for judicial

determination and not justiciable by this court, we dismiss the

petitions for lack of jurisdiction.

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I.

This case once again brings before this court the federal

government’s controversial ongoing attempt to devise a

permanent solution to the problems of civilian radioactive waste

disposal. See, e.g., Nevada v. DOE, 457 F.3d 78 (D.C. Cir.

2006) (challenging the DOE’s Final Environmental Impact

Statement and Record of Decision for the Yucca Mountain

nuclear waste repository); Nevada v. DOE, 400 F.3d 9 (D.C. Cir.

2005) (challenging a DOE order denying Nevada a grant to fund

its participation in an NRC proceeding regarding Yucca

Mountain); Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251

(D.C. Cir. 2004) (challenging a congressional joint resolution

and the associated federal regulations selecting Yucca Mountain

as the site for the federal nuclear repository); Northern States

Power Co. v. DOE, 128 F.3d 754 (D.C. Cir. 1997) (requesting

a writ of mandamus requiring DOE to comply with the Nuclear

Waste Policy Act). The present petitioners argue that recent

actions taken by the DOE—which at the very least demonstrate

the DOE’s desire to abandon development of the Yucca

Mountain nuclear waste repository—violate the Nuclear Waste

Policy Act (“NWPA”), the National Environmental Policy Act,

and the Administrative Procedure Act (“APA”). Three of the

petitioners—Aiken County in South Carolina, the State of South

Carolina, and the State of Washington—are state or local

governments of localities that are home to sites that temporarily

store spent nuclear fuel and high-level radioactive waste pending

the opening of a federal nuclear waste repository. The

remaining petitioners are three private citizens who live and

work near one of those sites. Put succinctly, Petitioners believe

that if the federal government abandons the Yucca Mountain

nuclear repository, the only congressionally-approved site for

permanently disposing of the nation’s spent nuclear waste will

be lost and the federal government will fail to comply with its

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statutory responsibility to provide for the permanent disposal of

all of the nation’s high-level radioactive waste.

Congress imposed that responsibility upon the federal

government in 1983 when it enacted the NWPA, Pub. L. No. 97-

425, 96 Stat. 2201 (1983) (codified as amended at 42 U.S.C.

§§ 10101-270). Recognizing that “Federal efforts during the

past 30 years to devise a permanent solution to the problems of

civilian radioactive waste disposal [had] not been adequate,” 42

U.S.C. § 10131(a)(3), Congress passed the NWPA “to establish

a schedule for the siting, construction, and operation of

repositories” for the disposal of spent nuclear fuel and high-level

radioactive waste. 42 U.S.C. § 10131(b)(1). As originally

enacted, the NWPA set forth a process by which the DOE would

first identify five repositories “determine[d] suitable for site

characterization for selection of the first repository site.” 42

U.S.C. § 10132(b)(1)(A). After performing environmental

assessments of each of those first five potential sites, the NWPA

required the DOE to recommend three of the sites to the

President for characterization as candidate sites no later than

January 1, 1985. 42 U.S.C. § 10132(b)(1)(B), (E). In 1987,

after the DOE had recommended the Yucca Mountain site as

well as sites in Washington and Texas to the President, Congress

short-circuited the original process and amended the NWPA to

designate Yucca Mountain as the only site for possible

development as a repository. Congress ordered the DOE to

“provide for an orderly phase-out of site specific activities at all

candidate sites other than the Yucca Mountain site.” 42 U.S.C.

§ 10172(a)(1).

After Congress specified Yucca Mountain as the sole

potential location for the nation’s nuclear waste repository, the

DOE moved on to the site characterization, approval, review,

and licensing phase of the process created by the NWPA. See

42 U.S.C. §§ 10133-38. Over the next fifteen years, the DOE

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performed site characterization activities at Yucca Mountain,

and in 2002, the DOE recommended “that Yucca Mountain be

developed as the site for an underground repository for spent

fuel and other radioactive wastes.” Recommendation by the

Secretary of Energy Regarding the Suitability of the Yucca

Mountain Site for a Repository Under the Nuclear Waste Policy

Act of 1982 at 1 (Feb. 2002). As expressly permitted by the

NWPA, the State of Nevada submitted an official objection to

the DOE’s recommendation, halting consideration of the Yucca

Mountain site. See 42 U.S.C. § 10135(b). Congress overcame

this objection by passing a joint resolution “affirmatively and

finally approv[ing] the Yucca site for a repository, thus bringing

the site-selection process to a conclusion.” Nuclear Energy

Inst., 373 F.3d at 1309; see also Pub. L. No. 107-200, 116 Stat.

735 (2002) (codified at 42 U.S.C. § 10135 note).

The NWPA next directed the DOE to “submit to the

Commission an application for a construction authorization for

a repository at such site.” 42 U.S.C. § 10134(b). Although the

NWPA required that the DOE submit this application within

ninety days of the site designation becoming effective, id., the

DOE did not submit the Yucca Mountain application for another

six years. Finally, on June 17, 2008, the DOE submitted the

application and the Commission docketed it for review by its

Atomic Safety and Licensing Board (“Licensing Board”). See

Department of Energy; Notice of Acceptance for Docketing of

a License Application for Authority to Construct a Geologic

Repository at a Geologic Repository Operations Area at Yucca

Mountain, NV, 73 Fed. Reg. 53,284 (Sept. 15, 2008). The

NRC’s Licensing Board began its review of the Yucca Mountain

application, but on March 3, 2010, the DOE filed a motion to

withdraw its application with prejudice. See Dep’t of Energy

Motion to Withdraw, In re U.S. Dep’t of Energy (High-Level

Waste Repository), Docket No. 63-001, ASLBP No. 09-892-

HLW-CAB04 (United States Nuclear Regulatory Commission)

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(Mar. 3, 2010). In its motion, the DOE stated that although it

“reaffirms its obligation to take possession and dispose of the

nation’s spent nuclear fuel and high-level nuclear waste, the

Secretary of Energy has decided that a geologic repository at

Yucca Mountain is not a workable option for long-term

disposition of these materials.” Id. at 1. The DOE clarified that

it sought to dismiss the application with prejudice “because it

does not intend ever to refile an application to construct a

permanent geologic repository . . . at Yucca Mountain.” Id. at

3 & n.3.

On June 29, 2010, the NRC Licensing Board denied the

DOE’s motion to withdraw. Order of Atomic Safety and

Licensing Board, In re U.S. Dep’t of Energy (High-Level Waste

Repository), Docket No. 63-001, ASLBP No. 09-892-HLW-

CAB04 (United States Nuclear Regulatory Commission) (June

29, 2010). Noting that the DOE conceded that the Yucca

Mountain license application was not defective nor the site

unsafe, the Licensing Board concluded that the NWPA “does

not permit the Secretary [of the DOE] to withdraw the

Application that the NWPA mandates the Secretary file.” Id. at

3. In denying the DOE’s motion, the Licensing Board held that

“the NWPA does not give the Secretary the discretion to

substitute his policy for the one established by Congress in the

NWPA that, at this point, mandates progress toward a merits

decision by the Nuclear Regulatory Commission on the

construction permit.” Id. The next day, the Secretary of the

Commission invited all of the participants before the Licensing

Board to file briefs as to whether the Commission should

review, reverse, or uphold the Licensing Board’s decision to

deny the DOE’s motion to withdraw. Order, In re U.S. Dep’t of

Energy (High-Level Waste Repository), Docket No. 63-001-

HLW (United States Nuclear Regulatory Commission) (June 30,

2010). At this time, both the NRC Licensing Board’s review of

the DOE Yucca Mountain license application and the

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Commission’s review of the Licensing Board’s denial of the

DOE’s motion to withdraw are ongoing.

Petitioners identify the DOE’s attempt to withdraw its

Yucca Mountain license application from consideration by the

NRC Licensing Board as the “determination” they seek to have

us review. Petitioners argue that the DOE lacks the legal

authority to withdraw its application and that the DOE’s attempt

to do so violates the NWPA. Petitioners’ second claim

challenges a different “determination:” the DOE’s efforts

outside of the NRC licensing context “to irrevocably abandon

the Yucca Mountain process and terminate the entire Yucca

Mountain project.” Brief of Petitioners at 42. As evidence that

the DOE is abandoning the Yucca Mountain site, Petitioners

point to an array of DOE actions including announcing on

January 29, 2010 that the DOE was abandoning the Yucca

Mountain site and creating a Blue Ribbon Commission to find

another way of disposing of high level nuclear waste;

withdrawing its Yucca Mountain water permit applications from

the State of Nevada; repurposing funds appropriated by

Congress for Yucca Mountain; notifying employees supporting

the Yucca Mountain license application that they may be

separated; and drafting plans to shut down the Yucca Mountain

site. Petitioners argue that the NWPA does not authorize the

DOE to take actions to abandon Yucca Mountain, that

abandoning Yucca Mountain without preparing an

Environmental Impact Statement violates the National

Environmental Policy Act, and that the action should be

overturned as arbitrary and capricious agency action under the

APA.

In response, the DOE both disputes the merits of

Petitioners’ claims and argues that this court lacks jurisdiction

to hear their petitions. The DOE makes multiple threshold

arguments, contending, inter alia, that Petitioners lack standing

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before this court, that Petitioners’ first claim is unripe for

judicial review, that Petitioners fail to state a claim upon which

relief can be granted, and that there has been no final agency

action which would be reviewable by this court. Any one of

these arguments, if correct, would establish that this court lacks

the authority to grant relief upon these petitions. Because we

agree with the DOE that there is, at least, a lack of finality and

ripeness until the Commission either acts on the DOE’s motion

to withdraw or rules on the license application, we hold that we

lack jurisdiction and therefore cannot address either the merits

of the petitions or the remaining threshold issues.

II.

Ripeness is a justiciability doctrine “‘drawn both from

Article III limitations on judicial power and from prudential

reasons for refusing to exercise jurisdiction.’” Nat’l Park

Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)

(quoting Reno v. Catholic Soc. Services, Inc., 509 U.S. 43, 57

n.18 (1993)). Prudentially, the basic rationale of the ripeness

doctrine “is to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete

way by the challenging parties.” Abbott Labs. v. Gardner, 387

U.S. 136, 148-49 (1967). As the Supreme Court has observed,

“federal courts may exercise power only ‘in the last resort, and

as a necessity.’” Allen v. Wright, 468 U.S. 737, 752 (1984)

(quoting Chicago & Grand Trunk Railway Co. v. Wellman, 143

U.S. 339, 345 (1892)). We have noted that it is sometimes true

that if we do not decide a case prematurely, we may never need

to decide it. Nat’l Treasury Employees Union v. United States,

101 F.3d 1423, 1431 (D.C. Cir. 1996). Refusing to involve the

courts in ongoing administrative matters both protects judicial

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resources and comports with the judiciary’s role as the

governmental branch of last resort. Id. The ripeness doctrine,

even in its prudential aspect, is a threshold inquiry that does not

involve adjudication on the merits and which may be addressed

prior to consideration of other Article III justiciability doctrines.

Toca Producers v. FERC, 411 F.3d 262, 265 n.* (D.C. Cir.

2005).

When we apply the ripeness doctrine to review of agency

actions, “‘we balance the interests of the court and the agency in

delaying review against the petitioner’s interest in prompt

consideration of allegedly unlawful agency action.’” Toca

Producers, 411 F.3d at 265 (quoting Fed. Express Corp. v.

Mineta, 373 F.3d 112, 118 (D.C. Cir. 2004)). “The interests of

the court and of the agency in withholding judicial review

ordinarily depend upon ‘the fitness of the issues for judicial

decision,’” id. at 266 (quoting Abbott Labs., 387 U.S. at 149),

which depends, inter alia, on whether the issues are purely legal,

whether consideration of the issues would benefit from a more

concrete setting, and whether the agency’s actions are

sufficiently final. CTIA–The Wireless Ass’n v. FCC, 530 F.3d

984, 987 (D.C. Cir. 2008); Atl. States Legal Found., Inc. v. EPA,

325 F.3d 281, 284 (D.C. Cir. 2003). “But when an agency

decision may never have its effects felt in a concrete way by the

challenging parties, the prospect of entangling ourselves in a

challenge to such a decision is an element of the fitness

determination as well.” Devia v. NRC, 492 F.3d 421, 424 (D.C.

Cir. 2007) (internal citation and quotation marks omitted).

“Hence, a ‘claim is not ripe for adjudication if it rests upon

contingent future events that may not occur as anticipated, or

indeed may not occur at all.’” Id. (quoting Texas v. United

States, 523 U.S. 296, 300 (1998) (internal citation and quotation

marks omitted)).

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In this case, Petitioners fear that the DOE will withdraw its

Yucca Mountain license application, significantly delaying or

perhaps permanently preventing the construction of the Yucca

Mountain repository. If the Yucca Mountain repository never

opens, Petitioners argue, the federal government will never

remove the nuclear waste temporarily stored within their

jurisdictions or near where they live, despite the federal

government’s responsibility for doing so. This fear is not

unreasonable, considering that the NWPA ordered the DOE to

“terminate all site specific activities (other than reclamation

activities) at all candidate sites, other than the Yucca Mountain

site.” 42 U.S.C. § 10172(a)(2). But despite the reasonableness

of Petitioners’ fears, their petitions are premature.

A.

Petitioners’ first claim challenges the DOE’s attempt to

withdraw its Yucca Mountain construction license application

from consideration by the Commission. At this stage of the

administrative process, however, the DOE has no say in whether

the Yucca Mountain license application will be reviewed and

granted. That power lies exclusively with the Secretary of the

Commission and the NRC Licensing Board, which already

denied the DOE’s motion to withdraw the license application

and still has the responsibility and authority to review the merits

of the Yucca Mountain application. There are two ongoing

NRC administrative procedures—the Commission’s review of

the Licensing Board’s denial of the DOE motion to withdraw

and the Licensing Board’s review of the Yucca Mountain

construction license application—both of which have the

potential to moot Petitioners’ first claim entirely.

First, the Commission has not yet decided whether it will

review the Licensing Board’s denial of the DOE motion to

withdraw. If the Commission declines to review the denial, the

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DOE will have failed in its attempt to withdraw the Yucca

Mountain application and Petitioners’ first claim will be moot.

The same outcome will occur if the Commission chooses to

review and then upholds the Licensing Board’s denial of the

DOE motion. The only way in which Petitioner’s first claim

will not become moot is if the Commission chooses to review

and then reverses the Licensing Board’s denial.

Second, independent of the Commission’s review of the

Licensing Board’s denial order, the NRC Licensing Board’s

consideration of the DOE Yucca Mountain license application

has not been completed. Although Petitioners point to evidence

that the Commission has suspended the Licensing Board’s

review, we note that the NWPA requires the Commission to

review the application, see 42 U.S.C. § 10134(d) (“The

Commission shall consider an application for a construction

authorization for all or part of a repository . . . .”), and therefore

we must assume that the Commission will comply with its

statutory mandate. If the Licensing Board denies the

application, consideration of Yucca Mountain as a location for

the federal nuclear waste repository will come to an end.

Although this outcome will not remedy the harm that Petitioners

potentially face—indefinite exposure to the nuclear waste

temporarily stored at sites in Washington and South

Carolina—the Licensing Board’s disapproval of Yucca

Mountain on technical and scientific grounds will be a final

agency action that Petitioners may challenge under the APA.

On the other hand, if the Licensing Board approves the

application, the Commission will issue a construction license for

Yucca Mountain, which would complete the process mandated

in the NWPA and remove the legal basis of Petitioners’ first

claim (i.e. the failure of Respondents to comply with the process

mandated by Congress).

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Between the Commission’s possible review of the denial

order and the Licensing Board’s consideration of the Yucca

Mountain license application, the only administrative outcome

that will fail to resolve the issues presented in Petitioner’s first

claim would be if the Commission reviews and overturns the

Licensing Board’s denial, permitting the DOE to withdraw its

license application. At that point, petitioners would have the

opportunity to demonstrate whether the effects of the DOE

action are “‘felt in a concrete way by the challenging parties.’”

See Devia, 492 F.3d at 424 (quoting Abbott Labs., 387 U.S. at

148-49). Petitioners’ first claim, therefore, is not fit for judicial

decision because “it rests upon ‘contingent future events that

may not occur as anticipated, or indeed may not occur at all.’”

Id. (quoting Texas v. United States, 523 U.S. at 300 (internal

citations and quotation marks omitted)).

Looking to the other aspect of the prudential ripeness

analysis, delaying review of the issues in this case causes little

harm to Petitioners’ interest in prompt consideration of allegedly

unlawful agency action. As we noted above, the NWPA

requires the Commission to “issue a final decision approving or

disapproving the issuance of a construction authorization not

later than the expiration of 3 years after the date of the

submission of such application, except that the Commission may

extend such deadline by not more than 12 months” subject to

specified reporting requirements. 42 U.S.C. §§ 10134(d)-(e).

Without an extension, the three-year statutory deadline for the

Commission to issue its final decision on the DOE’s Yucca

Mountain application—submitted on June 17, 2008—has

potentially already come and gone.1 Very soon, the

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. W e 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.

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contingencies discussed above should be resolved and

Petitioners—and importantly this court—will know whether the

Commission will permit the DOE to withdraw the Yucca

Mountain license application, and if not, whether the

Commission approves or disapproves the application. Should

the Commission fail to act within the deadline specified in the

NWPA, Petitioners would have a new cause of action under this

court’s ruling in Telecommunications Research and Action

Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (hereinafter

“TRAC”). In TRAC, we held that the Courts of Appeals have

exclusive jurisdiction to issue writs of mandamus to compel

agency actions that have been unreasonably delayed. 750 F.2d

at 75. Although mandamus is an extraordinary remedy reserved

for extraordinary circumstances, “we will interfere with the

normal progression of agency proceedings to correct transparent

violations of a clear duty to act.” In re Am. Rivers and Idaho

Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004) (emphasis

added) (internal citations and quotation marks omitted). We do

so both to protect our own future jurisdiction over the merits of

the dispute and because “[i]t is obvious that the benefits of

agency expertise and creation of a record will not be realized if

the agency never takes action.” Id. (quoting TRAC, 750 F.2d at

76, 79). We will not permit an agency to insulate itself from

judicial review by refusing to act. See, e.g., In re Core

Communications, Inc., 531 F.3d 849, 861-62 (D.C. Cir. 2008)

(granting a writ of mandamus to force the FCC to issue a final

appealable order); Radio-Television News Directors Ass’n v.

FCC, 229 F.3d 269, 308 (D.C. Cir. 2000) (granting a writ of

mandamus to vacate an FCC order when the FCC failed to take

final action).

Having concluded that Petitioners’ challenge of the DOE’s

motion to withdraw is unfit for judicial decision and that

Petitioners’ interest in prompt consideration of allegedly

unlawful agency action will be only minimally harmed by delay,

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we further conclude that Petitioners’ first claim is not ripe and

is therefore outside of our jurisdiction.

B.

Petitioners’ second claim challenges DOE actions which are

simply not reviewable by this court. Petitioners characterize the

agency action challenged in their second claim as the

“determination made on or about January 29, 2010, by

Respondents President Obama, Secretary Chu and DOE to

unilaterally and irrevocably terminate the Yucca Mountain

repository process mandated by the Nuclear Waste Policy Act,

42 U.S.C. §§ 10101-10270.” Agency actions are reviewable by

courts of appeal under the terms of 5 U.S.C. § 704. That section

delineates reviewable actions as “[a]gency action made

reviewable by statute and final agency action for which there is

no other adequate remedy in a court . . . .” Petitioners have

failed to identify any agency action coming within that

delineation. Otherwise put, petitioners have set forth no discrete

action mandated by the NWPA that the DOE has failed to

perform or performed inadequately. In 42 U.S.C. § 10134(b),

Congress ordered the DOE to “submit to the Commission an

application for a construction authorization for a repository.”

The DOE completed this task on June 17, 2008, and its

application is currently under review by the NRC Licensing

Board. Despite the DOE’s publicly stated desire and intention

to abandon the Yucca Mountain repository, the DOE has shown

us nothing that grants it the authority or ability to stop the NRC

Licensing Board from continuing its congressionally-mandated

review and has entered no order or official decision inconsistent

with its statutory duty. See 42 U.S.C. § 10134(d). Unable to

point to any unlawful action by the DOE, Petitioners challenge

DOE’s public announcement regarding Yucca Mountain.

Neither the NWPA nor the APA authorizes this type of legal

attack.

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The DOE’s policy announcement, which has no legal

consequence, is not a “final decision or action of the Secretary”

or a “final agency action” as required by 42 U.S.C.

§ 10139(a)(1)(A) and 5 U.S.C. § 704 . See Bennett v. Spear, 520

U.S. 154, 178 (1997) (holding that “final” agency action must

both mark consummation of an agency’s decision making

process and either determine rights or obligations or be an action

from which legal consequences will flow). Nor, at this stage of

the ongoing Yucca Mountain saga, has the DOE failed to make

any decision or take any action mandated by the NWPA—as

required to give this court jurisdiction under 42 U.S.C.

§ 10139(a)(1)(B)—or made a decision or taken an action which

violates the Constitution—as required to give this court

jurisdiction under 42 U.S.C. § 10139(a)(1)(C). Likewise, since

the DOE has not taken any action prohibited under the NWPA

or failed to take any action required by the NWPA, the DOE’s

failure to prepare an environmental impact statement before

making its announcement, as would otherwise have been

required by 42 U.S.C. § 10139(a)(1)(D), is not yet an official,

reviewable decision. Finally, to the extent that Petitioners wish

to “compel agency action unlawfully withheld” based on the

language of 5 U.S.C. § 706(1), “a claim under § 706(1) can

proceed only where a plaintiff asserts that an agency failed to

take a discrete agency action that it is required to take.” Norton

v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)

(emphasis in original). At least to this date, the DOE has not

failed to take any discrete agency action that Congress ordered

it to take. Petitioners’ general complaints about the DOE’s new

policy regarding Yucca Mountain are simply not justiciable. See

Cobell v. Kempthorne, 455 F.3d 301, 307 (D.C. Cir. 2006)

(“Because an on-going program or policy is not, in itself, a ‘final

agency action’ under the APA, our jurisdiction does not extend

to reviewing generalized complaints about agency behavior.”

(quotation and citation omitted)).

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III.

The NWPA set forth a process and schedule for the siting,

construction, and operation of a federal repository for the

disposal of spent nuclear fuel and high-level radioactive waste.

At this point in that process, the DOE has submitted a

construction license application for the Yucca Mountain

repository and the Commission maintains a statutory duty to

review that application. Despite the respondents’

pronouncements and apparent intentions, unless and until

Petitioners are able to demonstrate that one of the respondents

has either violated a clear duty to act or otherwise affirmatively

violated the law, Petitioners’ challenges to the ongoing

administrative process are premature. For the reasons set forth

above, we conclude that we lack jurisdiction over Petitioners’

claims. The petitions are dismissed.

BROWN, Circuit Judge, concurring: I fully concur with the

court’s opinion. I write separately only to note that after

setting the President and his administration firmly in their

sights, Petitioners all but ignore the NRC—a named party in

this suit and the only agency with an existing obligation under

the NWPA. “[O]ur jurisdiction . . . is not limited to situations

in which ‘final action,’ as it is commonly understood, has

indeed been taken.” Sierra Club v. Thomas, 828 F.2d 783,

793 (D.C. Cir. 1987). “Agency inaction may represent

‘agency recalcitrance . . . in the face of a clear statutory

duty . . . of such magnitude that it amounts to an abdication of

statutory responsibility.’” Id. (quoting Pub. Citizen Health

Research Gr. v. FDA, 740 F.2d 21, 32 (D.C. Cir. 1984))

(alterations in original). It is arguable the NRC has abdicated

its statutory responsibility under the NWPA. The

Commissioner publically said:

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., 130 S. Ct. 3138, 3155-56 (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

The Department of Energy and the Nuclear Regulatory

Commission are both agencies in the Executive Branch. See

5 U.S.C. § 105; 42 U.S.C. § 7131 (Department of Energy); 42

U.S.C. § 5841 (Nuclear Regulatory Commission). As a result

of the Supreme Court’s 1935 decision in Humphrey’s

Executor v. United States, 295 U.S. 602, there are two kinds

of agencies in the Executive Branch: executive agencies and

2

independent agencies. The Secretary of Energy is removable

by the President at will, meaning the Department of Energy is

an executive agency that the President has authority to direct

and supervise. By statute, the Commissioners of the Nuclear

Regulatory Commission are removable by the President only

for cause, not at will, meaning that the Commission is an

independent agency that operates free of presidential direction

and supervision.

This case is a mess because the executive agency (the

Department of Energy) and the independent agency (the

Nuclear Regulatory Commission) have overlapping statutory

responsibilities with respect to the Yucca Mountain project.

In particular, both agencies have critical roles in interpreting

the relevant statutes and in exercising discretion under those

laws. Of importance here, the statutes give the independent

Nuclear Regulatory Commission the final word in the

Executive Branch on whether the Executive Branch may

terminate the Yucca Mountain project. At the President’s

direction, the Department of Energy decided to withdraw the

Yucca Mountain license application and terminate the Yucca

Mountain nuclear storage project. A board within the Nuclear

Regulatory Commission preliminarily rejected the decision of

the Department of Energy (and thus of the President) to

withdraw the Yucca Mountain license application. But the

full Nuclear Regulatory Commission has yet to decide

whether it will approve or reject the decision of the

Department of Energy. Because the Commission has not yet

acted on the Department of Energy’s request, the Court’s

opinion today properly holds this case unripe under the

existing legal framework.

Taking a step back and reading the Constitution,

however, it seems odd that the Nuclear Regulatory

Commission has the final word within the Executive Branch

on this important issue. One would think that the President of

the United States controls the Executive Branch and would be

3

able to direct the interpretation of law and exercise of

discretion by all agencies in the Executive Branch. See U.S.

CONST. art. II. The first 15 words of Article II state quite

plainly that “[t]he executive Power shall be vested in a

President of the United States of America” – not some of the

executive power, but all of it. And Article II later says that

the President alone has the authority and responsibility to

“take Care that the Laws be faithfully executed.” As

Professor Amar has summarized, “What Article II did make

emphatically clear from start to finish was that the president

would be personally responsible for his branch.” AKHIL REED

AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 197 (2005).

The Framers’ decision to give the President responsibility

for the executive power and to take care that the laws be

faithfully executed was not just about the lines on the

Executive Branch organizational chart. The Constitution’s

Framers sought a national government that would be more

effective than under the Articles of Confederation (especially

in maintaining national security, facilitating economic growth,

and raising necessary revenue) and a national government that

would be more accountable to the people and more protective

of liberty than under the rule of King George III. The

Framers were particularly cognizant, moreover, of the link

between accountability of officials in the Legislative and

Executive Branches and individual liberty. The Framers

designed our constitutional structure with the idea that

unaccountable power is inconsistent with individual liberty.

“The Framers created a structure in which ‘a dependence on

the people’ would be the ‘primary control on the

government.’” Free Enterprise Fund v. Public Co.

Accounting Oversight Bd., 130 S. Ct. 3138, 3157 (2010)

(quoting THE FEDERALIST NO. 51 (Madison)) (alteration

omitted).

The President is dependent on the people for election and

re-election, but the officers of agencies in the Executive

4

Branch are not. Presidential control of those agencies thus

helps maintain democratic accountability and thereby ensure

the people’s liberty. See id; see also Bond v. United States,

No. 09-1227, slip op. at 10 (U.S. June 16, 2011) (“[T]he

dynamic between and among the branches is not the only

object of the Constitution’s concern. The structural principles

secured by the separation of powers protect the individual as

well.”); Clinton v. City of New York, 524 U.S. 417, 450

(1998) (Kennedy, J., concurring) (“Liberty is always at stake

when one or more of the branches seek to transgress the

separation of powers.”); Morrison v. Olson, 487 U.S. 654,

727 (1988) (Scalia, J., dissenting) (“The purpose of the

separation and equilibration of powers in general, and of the

unitary Executive in particular, was not merely to assure

effective government but to preserve individual freedom.”).

Reading only the text of Article II, one would assume

that the Nuclear Regulatory Commission would report to the

President, not the President to the Nuclear Regulatory

Commission. If two agencies in the Executive Branch were

not on the same page (as may happen in this case if the

Nuclear Regulatory Commission rejects the Department of

Energy’s withdrawal application), the President presumably

would have the authority to resolve that disagreement. If an

agency were departing from the President’s preferred course

(as the Nuclear Regulatory Commission may do), the

President presumably would have the authority to prevent

that. And if an agency were taking too long to make a critical

legal or policy decision (as appears to be the case with the

Nuclear Regulatory Commission), the President presumably

would have the authority to fix that as well.

But that conception of the constitutional chain of

command turns out to be inaccurate with respect to

independent agencies such as the Nuclear Regulatory

Commission – a consequence of the Supreme Court’s 1935

decision in Humphrey’s Executor. In that case, the Supreme

5

Court, over the strenuous objection of President Franklin

Roosevelt, upheld the constitutionality of independent

agencies – that is, agencies whose heads are removable by the

President only for cause, not at will, and that thus operate free

of presidential direction and supervision.

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 (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.

6

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 (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 (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 (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 (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

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.

7

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

(1944) (backing away from prior opinions that had expanded

non-delegation doctrine); NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1 (1937) (backing away from prior cases that

had narrowly interpreted Commerce Clause); see also West

Coast Hotel Co. v. Parrish, 300 U.S. 379 (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.

II

Because 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

8

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

(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.”).

Because of Humphrey’s Executor, the President to this

day lacks day-to-day control over large swaths of regulatory

policy and enforcement in the Executive Branch – from

communications regulation (the FCC) to labor regulation (the

NLRB) to securities regulation (the SEC) to nuclear power

regulation (the Nuclear Regulatory Commission). Those and

many other independent agencies have huge policymaking

and enforcement authority and greatly affect the lives and

liberties of the American people. Yet those independent

agencies are democratically unaccountable – neither elected

by the people nor supervised in their day-to-day activities by

the elected President.2

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

9

This case is a good example of the continuing

significance of Humphrey’s Executor and the independent

agency structure it endorsed. Interpreting the relevant nuclear

waste statutes, the President of the United States has decided

not to use Yucca Mountain as a repository for nuclear waste.

As a candidate, the President campaigned on this issue. See,

e.g., Scott Conroy, Obama’s Nevada Ad Hits McCain on

Yucca Mountain¸ CBS NEWS (Aug. 9, 2008). And as

President, he has followed through on that commitment. See

e.g., DEPARTMENT OF ENERGY, FY 2011 CONGRESSIONAL

BUDGET REQUEST, BUDGET HIGHLIGHTS 8 (Feb. 2010) (J.A.

688-89) (“The Administration has determined that developing

a repository at Yucca Mountain, Nevada, is not a workable

option and has decided to terminate” work on the Yucca

Mountain project); Statement of Carol Browner, Director of

White House Office of Energy and Climate Change Policy, at

News Conference Announcing Blue Ribbon Commission on

America’s Nuclear Future (Jan. 29, 2010) (J.A. Addendum

177) (“As the President has said many times, we’re done with

Yucca . . . . [W]e work for the President, we take our

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., 130 S. Ct. 3138, 3156

(2010).

10

directions from the President, the President has been clear that

Yucca Mountain was not an option.”).

Whether the President’s Yucca Mountain decision, as

implemented by his subordinates in the Department of

Energy, is in fact consistent with federal statutory law is a

hotly disputed question. If it is not consistent with the

statutory law, the courts could so rule in an appropriate case.

Cf., e.g., Hamdan v. Rumsfeld, 548 U.S. 557 (2006); FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

But that’s not the question at issue here because the President

turns out not to have the final word in the Executive Branch

on that issue. He is powerless to direct or supervise the

Nuclear Regulatory Commission, which is the independent

agency charged with determining whether the Executive

Branch may terminate the Yucca project. If the Commission

rejects the President’s policy decision and legal interpretation

– by rejecting the pending application by the Department of

Energy (the President’s subordinate) to withdraw the

licensing application for Yucca Mountain – then the President

may be forced to continue with the Yucca Mountain project

simply because the Nuclear Regulatory Commission has told

him so.3

In its recent Free Enterprise decision, the Supreme Court

recognized the constitutional and practical issues that

continue to result from the Humphrey’s Executor structure.

Free Enterprise Fund v. Public Co. Accounting Oversight

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.

11

Bd., 130 S. Ct. 3138, 3155-59 (2010); see also FCC v. Fox

Television Stations, Inc., 129 S. Ct. 1800, 1816-17 (2009); id.

at 1825-26 (Stevens, J., dissenting); id. at 1829-30 (Breyer, J.,

dissenting). In Free Enterprise, the Supreme Court drew an

important constitutional line by refusing to extend

Humphrey’s Executor so far as to allow two levels of for-

cause removal – an independent agency appointed by another

independent agency. See Free Enterprise, 130 S. Ct. 3138.4

In so doing, the Free Enterprise Court repeatedly

emphasized the central role of the President under Article II

and the importance of that role to a government that remains

accountable to the people. The Court’s rhetoric and reasoning

are notably in tension with Humphrey’s Executor – and,

indeed, in tension with the Nuclear Regulatory Commission’s

having the final word in the Executive Branch on this Yucca

Mountain issue:

 “Article II confers on the President the general

administrative control of those executing the laws. It

is his responsibility to take care that the laws be

faithfully executed. The buck stops with the

President, in Harry Truman’s famous phrase. As we

explained in Myers, the President therefore must have

some power of removing those for whom he can not

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)).

12

continue to be responsible.” 130 S. Ct. at 3152

(internal quotation marks and citation omitted).

 “The people do not vote for the Officers of the United

States. They instead look to the President to guide the

assistants or deputies subject to his superintendence.

Without a clear and effective chain of command, the

public cannot determine on whom the blame or the

punishment of a pernicious measure, or series of

pernicious measures ought really to fall. That is why

the Framers sought to ensure that those who are

employed in the execution of the law will be in their

proper situation, and the chain of dependence be

preserved; the lowest officers, the middle grade, and

the highest, will depend, as they ought, on the

President, and the President on the community.” Id. at

3155 (internal quotation marks, citations, and

alteration omitted).

 Granting an agency “executive power without the

Executive’s oversight . . . subverts the President’s

ability to ensure that the laws are faithfully executed –

as well as the public’s ability to pass judgment on his

efforts.” That result is “incompatible with the

Constitution’s separation of powers.” Id.

 “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.” Id.

at 3155-56.

 “One can have a government that functions without

being ruled by functionaries, and a government that

benefits from expertise without being ruled by experts.

13

Our Constitution was adopted to enable the people to

govern themselves, through their elected leaders. The

growth of the Executive Branch, which now wields

vast power and touches almost every aspect of daily

life, heightens the concern that it may slip from the

Executive’s control, and thus from that of the people.”

Id. at 3156.

 “[T]he dissent dismisses the importance of removal as

a tool of supervision, concluding that the President’s

power to get something done more often depends on

who controls the agency’s budget requests and

funding, the relationships between one agency or

department and another, purely political factors

(including Congress’ ability to assert influence), and

indeed whether particular unelected officials support

or resist the President’s policies. The Framers did not

rest our liberties on such bureaucratic minutiae.” Id.

at 3156 (internal quotation marks, citation, and

alteration omitted).

 “The Framers created a structure in which a

dependence on the people would be the primary

control on the government. That dependence is

maintained, not just by parchment barriers, but by

letting ambition counteract ambition, giving each

branch the necessary constitutional means, and

personal motives, to resist encroachments of the

others. A key constitutional means vested in the

President – perhaps the key means – was the power of

appointing, overseeing, and controlling those who

execute the laws.” Id. at 3157 (internal quotation

marks, citations, and alterations omitted).

 “The President has been given the power to oversee

executive officers; he is not limited, as in Harry

14

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. (internal quotation marks,

citation, and alteration omitted).

 Even “[b]road power” over an independent agency’s

functions – for example, with respect to approving the

agency’s budget – “is not equivalent to the power to

remove” agency heads. “[A]ltering the budget or

powers of an agency as a whole is a problematic way

to control an inferior officer. The [supervisor] cannot

wield a free hand to supervise individual [officers] if it

must destroy the [agency] in order to fix it.” Id. at

3158-59.

 “The Constitution that makes the President

accountable to the people for executing the laws also

gives him the power to do so. That power includes, as

a general matter, the authority to remove those who

assist him in carrying out his duties. Without such

power, the President could not be held fully

accountable for discharging his own responsibilities;

the buck would stop somewhere else. Such diffusion

of authority would greatly diminish the intended and

necessary responsibility of the chief magistrate

himself.” Id. at 3164 (internal quotation marks and

citation omitted).

The Court’s various statements in Free Enterprise may

be of great significance – as Justice Breyer seemed to suggest

in issuing a strongly worded dissent in Free Enterprise and in

reading it at length from the bench. To be sure, the Free

Enterprise Court said that it was not reconsidering

Humphrey’s Executor because the double for-cause removal

15

question presented in Free Enterprise was “far more modest.”

Id. at 3157. But there can be little doubt that the Free

Enterprise Court’s wording and reasoning are in tension with

Humphrey’s Executor and are more in line with Chief Justice

Taft’s majority opinion in Myers.5

In addition to Free Enterprise, another recent

development has prompted greater attention to the

Humphrey’s Executor independent agency structure: the

uneven effectiveness of some of those agencies. For example,

the financial crisis of 2008 obviously caused widespread

hardship, and some say that several independent agencies

were in part responsible for the collapse. When one

presidential candidate in 2008 contended in the midst of the

crisis that the President should fire the chairman of the SEC,

many responded – with apparent justification, given

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.

16

Humphrey’s Executor – that the President had no such power

under current law. See, e.g., Jeff Mason, McCain Says He

Would Fire Republican SEC Chief Cox, REUTERS (Sept. 18,

2008). As that episode showed, in the Humphrey’s Executor-

style Executive Branch, the buck doesn’t always stop with the

President. Cf. THE FEDERALIST NO. 70 (Hamilton) (“A feeble

executive implies a feeble execution of the government. A

feeble execution is but another phrase for a bad execution;

and a government ill executed, whatever it may be in theory,

must be, in practice, a bad government.”).

III

All of that said, Humphrey’s Executor is an entrenched

Supreme Court precedent, protected by stare decisis. The

point of explaining its history and continuing repercussions

here is not to suggest that the case should be overturned. But

the fact that courts do and must accept the Humphrey’s

Executor precedent does not require ignoring the issues of

accountability, liberty, and government effectiveness raised

by independent agencies.

Various proposals have been advanced to enhance the

accountability and effectiveness of independent agencies in a

manner consistent with Humphrey’s Executor.

For example, writing for four justices, Justice Breyer

recently suggested that judicial review under the

Administrative Procedure Act’s arbitrary and capricious

standard perhaps should be more intensive when courts

review actions of independent agencies. Justice Breyer noted

that the independent agency’s “comparative freedom from

ballot-box control makes it all the more important that courts

review its decisionmaking to assure compliance with

applicable provisions of the law – including law requiring that

major policy decisions be based upon articulable reasons.”

FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1829-

17

30 (2009) (Breyer, J., dissenting). Justice Scalia, writing for

four Justices, disagreed with that suggestion, arguing that

there was “no reason to magnify the separation-of-powers

dilemma posed by the Headless Fourth Branch by letting

Article III judges – like jackals stealing the lion’s kill –

expropriate some of the power that Congress has wrested

from the unitary Executive.” Id. at 1817 (citation omitted).

Of course, Justice Scalia has previously expressed severe

criticism of Humphrey’s Executor. See Morrison v. Olson,

487 U.S. 654, 725-27 (1988) (Scalia, J., dissenting). So his

point in Fox seemed to be that he would prefer overruling

Humphrey’s Executor to the half-a-loaf approach articulated

by Justice Breyer.6

Others have suggested, given the Article II backdrop, that

an agency may be considered independent rather than

executive only if Congress has expressly said as much, by

placing for-cause limits on removal of the agency head.

Indeed, Justice Breyer raised this issue in the Free Enterprise

case. See Transcript of Oral Argument at 18, Free Enterprise

Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138

(2010) (No. 08-861) (“The SEC. What . . . restrictions?

Because, interestingly enough, my law clerks have been

unable to find any statutory provision that says that the

President of the United States can remove an SEC

commissioner only for cause. . . . It’s silent.”); see also Free

Enterprise, 130 S. Ct. at 3182-84 (Breyer, J., dissenting). For

example, the FCC and the SEC were created in the interim

between Myers and Humphrey’s Executor (that is, between

1926 and 1935), and Congress did not include for-cause

removal provisions in their governing statutes, no doubt

because such provisions were thought to be unconstitutional

after Myers. In the wake of Humphrey’s Executor, it

nonetheless became customary to treat multi-member

commissions created without for-cause removal provisions in

6

Justice Kennedy did not take a position on this issue in Fox.

18

the interim between Myers and Humphrey’s Executor as if

they were independent. But Congress never went back and

actually made the SEC and FCC Commissioners removable

only for cause.7

Moreover, as President Roosevelt suggested in the wake

of Humphrey’s Executor itself, Congress and the President

remain free to craft legislation that would increase the

accountability of these agencies by making the agency heads

removable at will – accompanied, if Congress chooses, by

more tightly drawn substantive statutes so as to prevent

excessive delegations of power to the Executive Branch or

perceived concentration of power in the President.

Humphrey’s Executor holds only that independent agencies

are constitutionally permissible, not that such agencies are

constitutionally required. The political branches have their

own authority and responsibility to interpret the Constitution

in a situation like this and, in any event, are able as a policy

matter to ensure that agencies are accountable to the people

and run efficiently and effectively. Cf. Presidential

Memorandum on Government Reform for Competitiveness

and Innovation, 76 Fed. Reg. 14,273 (Mar. 11, 2011); THE

PRESIDENT’S COMMITTEE ON ADMINISTRATIVE MANAGEMENT

(“the Brownlow Committee”), REPORT OF THE COMMITTEE

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 (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.

19

WITH STUDIES OF ADMINISTRATIVE MANAGEMENT IN THE

FEDERAL GOVERNMENT (1937).

* * *

I end where I began. This case is a dramatic illustration

of the continuing significance and implications of

Humphrey’s Executor. As a result of Humphrey’s Executor

and the current statutory scheme, the President does not have

the final word in the Executive Branch about whether to

terminate the Yucca Mountain project. For now, therefore,

the ball in this case rests in the Executive Branch not with the

President, but rather with the Nuclear Regulatory

Commission.