In Re: Aiken County

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 2, 2012 Decided August 13, 2013
Ordered Held in Abeyance August 3, 2012

No. 11-1271

IN RE: AIKEN COUNTY, ET AL.,
PETITIONERS

STATE OF NEVADA,
INTERVENOR

On Petition for Writ of Mandamus

Andrew A. Fitz, Senior Counsel, Office of the Attorney
General for the State of Washington, argued the cause for
petitioners. With him on the briefs were Robert M. McKenna,
Attorney General, Todd R. Bowers, Senior Counsel, Thomas
R. Gottshall, S. Ross Shealy, Alan Wilson, Attorney General,
Office of the Attorney General for the State of South
Carolina, William Henry Davidson II, Kenneth Paul
Woodington, James Bradford Ramsay, Robin J. Lunt, Barry
M. Hartman, Christopher R. Nestor, and Robert M. Andersen.

Jerry Stouck and Anne W. Cottingham were on the brief
for amicus curiae Nuclear Energy Institute, Inc. in support of
petitioners.

Charles E. Mullins, Senior Attorney, U.S. Nuclear
Regulatory Commission, argued the cause for respondent.
 2

With him on the brief were Stephen G. Burns, General
Counsel, John F. Cordes Jr., Solicitor, and Jeremy M.
Suttenberg, Attorney.

Martin G. Malsch argued the cause for intervenor State
of Nevada. With him on the briefs were Charles J.
Fitzpatrick and John W. Lawrence.

Before: GARLAND, Chief Judge, KAVANAUGH, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge
KAVANAUGH, with whom Senior Circuit Judge RANDOLPH
joins except as to Part III.

Concurring opinion filed by Senior Circuit Judge
RANDOLPH.

Dissenting opinion filed by Chief Judge GARLAND.

KAVANAUGH, Circuit Judge: This case raises significant
questions about the scope of the Executive’s authority to
disregard federal statutes. The case arises out of a
longstanding dispute about nuclear waste storage at Yucca
Mountain in Nevada. The underlying policy debate is not our
concern. The policy is for Congress and the President to
establish as they see fit in enacting statutes, and for the
President and subordinate executive agencies (as well as
relevant independent agencies such as the Nuclear Regulatory
Commission) to implement within statutory boundaries. Our
more modest task is to ensure, in justiciable cases, that
agencies comply with the law as it has been set by Congress.
Here, the Nuclear Regulatory Commission has continued to
violate the law governing the Yucca Mountain licensing
 3

process. We therefore grant the petition for a writ of
mandamus.

I

This case involves the Nuclear Waste Policy Act, which
was passed by Congress and then signed by President Reagan
in 1983. That law provides that the Nuclear Regulatory
Commission “shall consider” the Department of Energy’s
license application to store nuclear waste at Yucca Mountain
and “shall issue a final decision approving or disapproving”
the application within three years of its submission. 42
U.S.C. § 10134(d). The statute allows the Commission to
extend the deadline by an additional year if it issues a written
report explaining the reason for the delay and providing the
estimated time for completion. Id. § 10134(d), (e)(2).

In June 2008, the Department of Energy submitted its
license application to the Nuclear Regulatory Commission.
As recently as Fiscal Year 2011, Congress appropriated funds
to the Commission so that the Commission could conduct the
statutorily mandated licensing process. Importantly, the
Commission has at least $11.1 million in appropriated funds
to continue consideration of the license application.

But the statutory deadline for the Commission to
complete the licensing process and approve or disapprove the
Department of Energy’s application has long since passed.
Yet the Commission still has not issued the decision required
by statute. Indeed, by its own admission, the Commission has
no current intention of complying with the law. Rather, the
Commission has simply shut down its review and
consideration of the Department of Energy’s license
application.
 4

Petitioners include the States of South Carolina and
Washington, as well as entities and individuals in those
States. Nuclear waste is currently stored in those States in the
absence of a long-term storage site such as Yucca Mountain.

Since 2010, petitioners have sought a writ of mandamus
requiring the Commission to comply with the law and to
resume processing the Department of Energy’s pending
license application for Yucca Mountain. Mandamus is an
extraordinary remedy that takes account of equitable
considerations. The writ may be granted “to correct
transparent violations of a clear duty to act.” In re American
Rivers and Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir.
2004) (internal quotation marks omitted); see also Arizona v.
Inter Tribal Council of Arizona, Inc., No. 12-71, slip. op. at
17 n.10 (U.S. 2013) (noting that if the federal Election
Assistance Commission did not act on a state’s statutorily
permitted request, “Arizona would be free to seek a writ of
mandamus to ‘compel agency action unlawfully withheld or
unreasonably delayed’”) (quoting 5 U.S.C. § 706(1)).

In 2011, a prior panel of this Court indicated that, if the
Commission failed to act on the Department of Energy’s
license application within the deadlines specified by the
Nuclear Waste Policy Act, mandamus likely would be
appropriate. See In re Aiken County, 645 F.3d 428, 436 (D.C.
Cir. 2011). In 2012, after a new mandamus petition had been
filed, this panel issued an order holding the case in abeyance
and directing that the parties file status updates regarding
Fiscal Year 2013 appropriations. At that time, we did not
issue the writ of mandamus. Instead, in light of the
Commission’s strenuous claims that Congress did not want
the licensing process to continue and the equitable
considerations appropriately taken into account in mandamus
 5

cases, we allowed time for Congress to clarify this issue if it
wished to do so. But a majority of the Court also made clear
that, given the current statutory language and the funds
available to the Commission, the Commission was violating
federal law by declining to further process the license
application. And the Court’s majority further indicated that
the mandamus petition eventually would have to be granted if
the Commission did not act or Congress did not enact new
legislation either terminating the Commission’s licensing
process or otherwise making clear that the Commission may
not expend funds on the licensing process. See Order, In re
Aiken County, No. 11-1271 (D.C. Cir. Aug. 3, 2012).

Since we issued that order more than a year ago on
August 3, 2012, the Commission has not acted, and Congress
has not altered the legal landscape. As things stand, therefore,
the Commission is simply flouting the law. In light of the
constitutional respect owed to Congress, and having fully
exhausted the alternatives available to us, we now grant the
petition for writ of mandamus against the Nuclear Regulatory
Commission.

II

Our analysis begins with settled, bedrock principles of
constitutional law. Under Article II of the Constitution and
relevant Supreme Court precedents, the President must follow
statutory mandates so long as there is appropriated money
available and the President has no constitutional objection to
the statute. So, too, the President must abide by statutory
prohibitions unless the President has a constitutional
objection to the prohibition. If the President has a
constitutional objection to a statutory mandate or prohibition,
the President may decline to follow the law unless and until a
 6

final Court order dictates otherwise. But the President may
not decline to follow a statutory mandate or prohibition
simply because of policy objections. Of course, if Congress
appropriates no money for a statutorily mandated program,
the Executive obviously cannot move forward. But absent a
lack of funds or a claim of unconstitutionality that has not
been rejected by final Court order, the Executive must abide
by statutory mandates and prohibitions.

Those basic constitutional principles apply to the
President and subordinate executive agencies. And they
apply at least as much to independent agencies such as the
Nuclear Regulatory Commission. Cf. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 525-26 (2009) (opinion of Scalia,
J., for four Justices) (independent agency should be subject to
same scrutiny as executive agencies); id. at 547 (opinion of
Breyer, J., for four Justices) (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”).

In this case, however, the Nuclear Regulatory
Commission has declined to continue the statutorily mandated
Yucca Mountain licensing process. Several justifications
have been suggested in support of the Commission’s actions
in this case. None is persuasive.

First, the Commission claims that Congress has not yet
appropriated the full amount of funding necessary for the
Commission to complete the licensing proceeding. But
Congress often appropriates money on a step-by-step basis,
especially for long-term projects. Federal agencies may not
ignore statutory mandates simply because Congress has not
yet appropriated all of the money necessary to complete a
 7

project. See City of Los Angeles v. Adams, 556 F.2d 40, 50
(D.C. Cir. 1977) (when statutory mandate is not fully funded,
“the agency administering the statute is required to effectuate
the original statutory scheme as much as possible, within the
limits of the added constraint”). For present purposes, the key
point is this: The Commission is under a legal obligation to
continue the licensing process, and it has at least $11.1
million in appropriated funds – a significant amount of money
– to do so. See Commission Third Status Report, at 2 (Apr. 5,
2013).

Second, and relatedly, the Commission speculates that
Congress, in the future, will not appropriate the additional
funds necessary for the Commission to complete the licensing
process. So it would be a waste, the Commission theorizes, to
continue to conduct the process now. The Commission’s
political prognostication may or may not ultimately prove to
be correct. Regardless, an agency may not rely on political
guesswork about future congressional appropriations as a
basis for violating existing legal mandates. A judicial green
light for such a step – allowing agencies to ignore statutory
mandates and prohibitions based on agency speculation about
future congressional action – would gravely upset the balance
of powers between the Branches and represent a major and
unwarranted expansion of the Executive’s power at the
expense of Congress.

Third, the Commission points to Congress’s recent
appropriations to the Commission and to the Department of
Energy for the Yucca Mountain project. In the last three
years, those appropriations have been relatively low or zero.
The Commission argues that those appropriations levels
demonstrate a congressional desire for the Commission to
shut down the licensing process.
 8

But Congress speaks through the laws it enacts. No law
states that the Commission should decline to spend previously
appropriated funds on the licensing process. No law states
that the Commission should shut down the licensing process.
And the fact that Congress hasn’t yet made additional
appropriations over the existing $11.1 million available to the
Commission to continue the licensing process tells us nothing
definitive about what a future Congress may do. As the
Supreme Court has explained, courts generally should not
infer that Congress has implicitly repealed or suspended
statutory mandates based simply on the amount of money
Congress has appropriated. See TVA v. Hill, 437 U.S. 153,
190 (1978) (doctrine that repeals by implication are
disfavored “applies with even greater force when the claimed
repeal rests solely on an Appropriations Act”); United States
v. Langston, 118 U.S. 389, 394 (1886) (“a statute fixing the
annual salary of a public officer at a named sum . . . should
not be deemed abrogated or suspended by subsequent
enactments which merely appropriated a less amount for the
services of that officer for particular fiscal years”); cf. 1 GAO,
PRINCIPLES OF FEDERAL APPROPRIATIONS LAW at 2-49 (3d ed.
2004) (“a mere failure to appropriate sufficient funds will not
be construed as amending or repealing prior authorizing
legislation”).

In these circumstances, where previously appropriated
money is available for an agency to perform a statutorily
mandated activity, we see no basis for a court to excuse the
agency from that statutory mandate.

Fourth, the record suggests that the Commission, as a
policy matter, simply may not want to pursue Yucca
Mountain as a possible site for storage of nuclear waste. But
Congress sets the policy, not the Commission. And policy
 9

disagreement with Congress’s decision about nuclear waste
storage is not a lawful ground for the Commission to decline
to continue the congressionally mandated licensing process.
To reiterate, the President and federal agencies may not
ignore statutory mandates or prohibitions merely because of
policy disagreement with Congress. See Lincoln v. Vigil, 508
U.S 182, 193 (1993) (“Of course, an agency is not free simply
to disregard statutory responsibilities: Congress may always
circumscribe agency discretion to allocate resources by
putting restrictions in the operative statutes . . . .”); 18 Comp.
Gen. 285, 292 (1938) (“the question with the accounting
officers is not the apparent general merit of a proposed
expenditure, but whether the Congress, controlling the purse,
has by law authorized the expenditure”). 1

1
Like the Commission here, a President sometimes has policy
reasons (as distinct from constitutional reasons, cf. infra note 3) for
wanting to spend less than the full amount appropriated by
Congress for a particular project or program. But in those
circumstances, even the President does not have unilateral authority
to refuse to spend the funds. Instead, the President must propose
the rescission of funds, and Congress then may decide whether to
approve a rescission bill. See 2 U.S.C. § 683; see also Train v. City
of New York, 420 U.S. 35 (1975); Memorandum from William H.
Rehnquist, Assistant Attorney General, Office of Legal Counsel, to
Edward L. Morgan, Deputy Counsel to the President (Dec. 1,
1969), reprinted in Executive Impoundment of Appropriated Funds:
Hearings Before the Subcomm. on Separation of Powers of the S.
Comm. on the Judiciary, 92d Cong. 279, 282 (1971) (“With respect
to the suggestion that the President has a constitutional power to
decline to spend appropriated funds, we must conclude that
existence of such a broad power is supported by neither reason nor
precedent.”).
 10

III 2

We thus far have concluded that the Commission’s
inaction violates the Nuclear Waste Policy Act. To be sure,
there are also two principles rooted in Article II of the
Constitution that give the Executive authority, in certain
circumstances, to decline to act in the face of a clear statute.
But neither of those principles applies here.

First, the President possesses significant independent
authority to assess the constitutionality of a statute. See U.S.
CONST. art. II, § 1, cl. 1 (Executive Power Clause); U.S.
CONST. art. II, § 1, cl. 8 (Oath of Office Clause); U.S. CONST.
art. II, § 3 (Take Care Clause). But that principle does not
help the Commission.

To explain: The President is of course not bound by
Congress’s assessment of the constitutionality of a statute.
The Take Care Clause of Article II refers to “Laws,” and
those Laws include the Constitution, which is superior to
statutes. See U.S. CONST. art. VI (Constitution is “supreme
Law of the Land”). So, too, Congress is not bound by the
President’s assessment of the constitutionality of a statute.
Rather, in a justiciable case, the Supreme Court has the final
word on whether a statutory mandate or prohibition on the
Executive is constitutional. See Nixon v. Administrator of
General Services, 433 U.S. 425 (1977) (Presidential
Recordings and Materials Preservation Act is constitutional);
see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 639 (1952) (Jackson, J., concurring) (congressional
statutes that together preclude President from seizing steel
mills are constitutional); see generally Marbury v. Madison, 5
U.S. 137 (1803).
2
Judge Kavanaugh alone joins Part III of the opinion.
 11

So unless and until a final Court decision in a justiciable
case says that a statutory mandate or prohibition on the
Executive Branch is constitutional, the President (and
subordinate executive agencies supervised and directed by the
President) may decline to follow that statutory mandate or
prohibition if the President concludes that it is
unconstitutional. Presidents routinely exercise this power
through Presidential directives, executive orders, signing
statements, and other forms of Presidential decisions. See,
e.g., Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (based on
Article II, Presidents Bush and Obama refused to comply with
statute regulating passports of individuals born in Jerusalem);
Myers v. United States, 272 U.S. 52 (1926) (based on Article
II, President Wilson refused to comply with statutory limit on
the President’s removal power); see also Freytag v.
Commissioner of Internal Revenue, 501 U.S. 868, 906 (1991)
(Scalia, J., concurring) (President has “the power to veto
encroaching laws or even to disregard them when they are
unconstitutional”) (citation omitted); Presidential Authority to
Decline to Execute Unconstitutional Statutes, 18 Op. Off.
Legal Counsel 199, 199-200 (1994) (Walter Dellinger)
(describing as “uncontroversial” and “unassailable” the
proposition that a President may decline to execute an
unconstitutional statute in some circumstances); 2 THE
DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 446 (Jonathan
Elliot ed., 2d ed. 1836) (“the President of the United States
could shield himself, and refuse to carry into effect an act that
violates the Constitution”) (statement of James Wilson). 3

3
In declining to follow a statutory mandate that the President
independently concludes is unconstitutional, the President generally
may decline to expend funds on that unconstitutional program, at
least unless and until a final Court order rules otherwise. But in
 12

But even assuming arguendo that an independent agency
such as the Nuclear Regulatory Commission possesses Article
II authority to assess the constitutionality of a statute and thus
may decline to follow the statute until a final Court order says
otherwise, 4 the Commission has not asserted that the relevant
statutes in this case are unconstitutional. So that Article II
principle is of no help to the Commission here.

declining to follow a statutory prohibition that the President
independently concludes is unconstitutional (and not just unwise
policy, cf. supra note 1), the Appropriations Clause acts as a
separate limit on the President’s power. It is thus doubtful that the
President may permissibly expend more funds than Congress has
appropriated for the program in question. See U.S. CONST. art. I,
§ 9, cl. 7 (Appropriations Clause); see also OPM v. Richmond, 496
U.S. 414, 425 (1990) (“Any exercise of a power granted by the
Constitution to one of the other branches of Government is limited
by a valid reservation of congressional control over funds in the
Treasury.”). It is sometimes suggested, however, that the President
may elect not to follow a statutory prohibition on how otherwise
available appropriated funds are spent if the President concludes
that the prohibition is unconstitutional, at least unless and until a
final Court order rules otherwise. See David J. Barron & Martin S.
Lederman, The Commander in Chief at the Lowest Ebb – Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L.
REV. 689, 740 (2008). This case does not require analysis of those
difficult questions.
4
It is doubtful that an independent agency may disregard a
statute on constitutional grounds unless the President has concluded
that the relevant statute is unconstitutional. But we need not delve
further into that question here. Compare Humphrey’s Executor v.
United States, 295 U.S. 602 (1935), with Myers, 272 U.S. 52, and
Free Enterprise Fund v. Public Company Accounting Oversight
Board, 130 S. Ct. 3138 (2010).
 13

Second, it is also true that, under Article II, the President
possesses a significant degree of prosecutorial discretion not
to take enforcement actions against violators of a federal law.
But that principle does not support the Commission’s inaction
here. To demonstrate why, the contours of the Executive’s
prosecutorial discretion must be explained.

The Presidential power of prosecutorial discretion is
rooted in Article II, including the Executive Power Clause,
the Take Care Clause, the Oath of Office Clause, and the
Pardon Clause. See U.S. CONST. art. II, § 1, cl. 1 (Executive
Power Clause); U.S. CONST. art. II, § 1, cl. 8 (Oath of Office
Clause); U.S. CONST. art. II, § 2, cl. 1 (Pardon Clause); U.S.
CONST. art. II, § 3 (Take Care Clause); see also U.S. CONST.
art. I, § 9, cl. 3 (Bill of Attainder Clause). The President may
decline to prosecute certain violators of federal law just as the
President may pardon certain violators of federal law. 5 The
President may decline to prosecute or may pardon because of
the President’s own constitutional concerns about a law or
because of policy objections to the law, among other reasons. 6
See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974)
(“the Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case”); Community
for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201
(D.C. Cir. 1986) (“The power to decide when to investigate,

5
The power to pardon encompasses the power to commute
sentences. See Schick v. Reed, 419 U.S. 256, 264 (1974).
6
One important difference between a decision not to prosecute
and a pardon is that a pardon prevents a future President from
prosecuting the offender for that offense. Prosecutorial discretion,
meanwhile, might be exercised differently by a future President –
subject to statute of limitations issues or any due process limits that
might apply when an offender has reasonably relied on a prior
Presidential promise not to prosecute particular conduct.
 14

and when to prosecute, lies at the core of the Executive’s duty
to see to the faithful execution of the laws . . . .”); United
States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“The
discretionary power of the attorney for the United States in
determining whether a prosecution shall be commenced or
maintained may well depend upon matters of policy wholly
apart from any question of probable cause.”); Prosecution for
Contempt of Congress of an Executive Branch Official Who
Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal
Counsel 101, 125 (1984) (Theodore B. Olson) (“the
constitutionally prescribed separation of powers requires that
the Executive retain discretion with respect to whom it will
prosecute for violations of the law”); id. at 115 (“The
Executive’s exclusive authority to prosecute violations of the
law gives rise to the corollary that neither the Judicial nor
Legislative Branches may directly interfere with the
prosecutorial discretion of the Executive by directing the
Executive Branch to prosecute particular individuals.”);
Congressman John Marshall, Speech to the House of
Representatives (1800), reprinted in 18 U.S. app. at 29 (1820)
(The President may “direct that the criminal be prosecuted no
further. This is . . . the exercise of an indubitable and a
constitutional power.”); see also United States v. Klein, 80
U.S. 128, 147 (1871) (“To the executive alone is intrusted the
power of pardon; and it is granted without limit.”).

In light of the President’s Article II prosecutorial
discretion, Congress may not mandate that the President
prosecute a certain kind of offense or offender. The logic
behind the pardon power further supports that conclusion. As
has been settled since the Founding, the President has
absolute authority to issue a pardon at any time after an
unlawful act has occurred, even before a charge or trial. See
Ex parte Grossman, 267 U.S. 87, 120 (1925) (“The Executive
 15

can reprieve or pardon all offenses after their commission,
either before trial, during trial or after trial, by individuals, or
by classes . . . .”). So it would make little sense to think that
Congress constitutionally could compel the President to
prosecute certain offenses or offenders, given that the
President has undisputed authority to pardon all such
offenders at any time after commission of the offense. See
AKHIL REED AMAR, AMERICA’S CONSTITUTION: A
BIOGRAPHY 179 (2005) (“greater power to pardon subsumed
the lesser power to simply decline prosecution”). 7

The Executive’s broad prosecutorial discretion and
pardon powers illustrate a key point of the Constitution’s
separation of powers. One of the greatest unilateral powers a
President possesses under the Constitution, at least in the
domestic sphere, is the power to protect individual liberty by
essentially under-enforcing federal statutes regulating private
behavior – more precisely, the power either not to seek
charges against violators of a federal law or to pardon
violators of a federal law. 8 The Framers saw the separation of
the power to prosecute from the power to legislate as essential

7
If the Executive selectively prosecutes someone based on
impermissible considerations, the equal protection remedy is to
dismiss the prosecution, not to compel the Executive to bring
another prosecution. See United States v. Armstrong, 517 U.S. 456,
459, 463 (1996); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886);
cf. Linda R.S. v. Richard D., 410 U.S. 614, 618-19 (1973).
8
Congress obviously has tools to deter the Executive from
exercising authority in this way – for example by using the
appropriations power or the advice and consent power to thwart
other aspects of the Executive’s agenda (and ultimately, of course,
Congress has the impeachment power). But Congress may not
overturn a pardon or direct that the Executive prosecute a particular
individual or class of individuals.
 16

to preserving individual liberty. See THE FEDERALIST NO. 47,
at 269 (James Madison) (Clinton Rossiter ed., rev. ed. 1999)
(“The accumulation of all powers, legislative, executive, and
judiciary, in the same hands . . . may justly be pronounced the
very definition of tyranny.”); 1 MONTESQUIEU, THE SPIRIT OF
LAWS bk. 11, ch. 6, at 163 (Thomas Nugent trans., 1914)
(“When the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be
no liberty; because apprehensions may arise, lest the same
monarch or senate should enact tyrannical laws, to execute
them in a tyrannical manner.”). After enacting a statute,
Congress may not mandate the prosecution of violators of that
statute. Instead, the President’s prosecutorial discretion and
pardon powers operate as an independent protection for
individual citizens against the enforcement of oppressive laws
that Congress may have passed (and still further protection
comes from later review by an independent jury and Judiciary
in those prosecutions brought by the Executive). 9

9
It is likely that the Executive may decline to seek civil
penalties or sanctions (including penalties or sanctions in
administrative proceedings) on behalf of the Federal Government in
the same way. Because they are to some extent analogous to
criminal prosecution decisions and stem from similar Article II
roots, such civil enforcement decisions brought by the Federal
Government are presumptively an exclusive Executive power. See
Buckley v. Valeo, 424 U.S. 1, 138 (1976) (“The Commission’s
enforcement power, exemplified by its discretionary power to seek
judicial relief, is authority that cannot possibly be regarded as
merely in aid of the legislative function of Congress. A lawsuit is
the ultimate remedy for a breach of the law, and it is to the
President, and not to the Congress, that the Constitution entrusts the
responsibility to ‘take Care that the Laws be faithfully executed.’”)
(quoting U.S. CONST. art. II, § 3); Heckler v. Chaney, 470 U.S. 821,
831-33 (1985); Confiscation Cases, 74 U.S. 454, 457 (1868); see
 17

To be sure, a President’s decision to exercise
prosecutorial discretion and to decline to seek charges against
violators (or to pardon violators) of certain laws can be very
controversial. For example, if a President disagreed on
constitutional or policy grounds with certain federal
marijuana or gun possession laws and said that the Executive
Branch would not initiate criminal charges against violators of
those laws, controversy might well ensue, including public
criticism that the President was “ignoring” or “failing to
enforce” the law (and if a court had previously upheld the law
in question as constitutional, additional claims that the
President was also “ignoring” the courts). But the President
has clear constitutional authority to exercise prosecutorial
discretion to decline to prosecute violators of such laws, just
as the President indisputably has clear constitutional authority
to pardon violators of such laws. See, e.g., 1963 Attorney
Gen. Ann. Rep. 62, 62-63 (1963) (President Kennedy
commuted the sentences of many drug offenders sentenced to
mandatory minimums); Letter from Thomas Jefferson to
Abigail Adams (July 22, 1804), in 11 THE WRITINGS OF
THOMAS JEFFERSON 42, 43-44 (Andrew A. Lipscomb &
Albert Ellery Bergh eds., 1904) (President Jefferson both
pardoned those convicted under the Sedition Act and refused
to prosecute violators of the Act); President George

also Butz v. Economou, 438 U.S. 478, 515 (1978); Seven-Sky v.
Holder, 661 F.3d 1, 50 & n.43 (D.C. Cir. 2011) (Kavanaugh, J.,
dissenting) (referring to possibility that a President might exercise
prosecutorial discretion not to seek civil penalties against violators
of a statute). That said, it has occasionally been posited that the
President’s power not to initiate a civil enforcement action may not
be entirely absolute (unlike with respect to criminal prosecution)
and thus might yield if Congress expressly mandates civil
enforcement actions in certain circumstances. Cf. Heckler, 470
U.S. at 832-33.
 18

Washington, Proclamation (July 10, 1795), in 1 A
COMPILATION OF THE MESSAGES AND PAPERS OF THE
PRESIDENTS 1789-1897, at 181 (James D. Richardson ed.,
1896) (President Washington pardoned participants in the
Pennsylvania Whiskey Rebellion). 10 The remedy for

10
As a general matter, there is widespread confusion about the
differences between (i) the President’s authority to disregard
statutory mandates or prohibitions on the Executive, based on the
President’s constitutional objections, and (ii) the President’s
prosecutorial discretion not to initiate charges against (or to pardon)
violators of a federal law. There are two key practical differences.
First, the President may disregard a statutory mandate or
prohibition on the Executive only on constitutional grounds, not on
policy grounds. By contrast, the President may exercise the
prosecutorial discretion and pardon powers on any ground –
whether based on the Constitution, policy, or other considerations.
Second, our constitutional structure and tradition establish that a
President is bound to comply with a final Court decision holding
that a statutory mandate or prohibition on the Executive is
constitutional. But in the prosecutorial discretion and pardon
context, when a Court upholds a statute that regulates private
parties as consistent with the Constitution, that ruling simply
authorizes prosecution of violators of that law. Such a Court ruling
does not require the President either to prosecute violators of that
law or to refrain from pardoning violators of that law. So the
President may decline to prosecute or may pardon violators of a law
that the Court has upheld as constitutional. To take one example, a
President plainly could choose not to seek (or could commute)
federal death sentences because of the President’s own objections
to the death penalty, even though the Supreme Court has upheld the
death penalty as constitutional. See Daniel J. Meltzer, Executive
Defense of Congressional Acts, 61 DUKE L.J. 1183, 1189-90 (2012)
(“President Jefferson ended pending prosecutions under the
Sedition Act and pardoned individuals previously convicted under
that Act, even though the courts had upheld the Act’s
constitutionality. . . . [I]t can hardly be said that his pardons
 19

Presidential abuses of the power to pardon or to decline to
prosecute comes in the form of public disapproval,
congressional “retaliation” on other matters, or ultimately
impeachment in cases of extreme abuse.

So having said all of that, why doesn’t the principle of
prosecutorial discretion justify the Nuclear Regulatory
Commission’s inaction in this case? The answer is
straightforward. Prosecutorial discretion encompasses the
Executive’s power to decide whether to initiate charges for
legal wrongdoing and to seek punishment, penalties, or
sanctions against individuals or entities who violate federal
law. Prosecutorial discretion does not include the power to
disregard other statutory obligations that apply to the
Executive Branch, such as statutory requirements to issue
rules, see Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007)
(explaining the difference), or to pay benefits, or to
implement or administer statutory projects or programs. Put
another way, prosecutorial discretion encompasses the
discretion not to enforce a law against private parties; it does
not encompass the discretion not to follow a law imposing a
mandate or prohibition on the Executive Branch. 11

disregarded a duty to enforce or defend a congressional statute,
given that the pardon power, by its nature, involves undoing the
prior enforcement, via conviction, of a statute. And although the
abatement of pending prosecutions failed in one sense to enforce
the Sedition Act, given the breadth of prosecutorial discretion –
whether rooted in the Constitution, in the presumed intention of
Congress, or in some combination of the two – it is hard to view
Jefferson as having disregarded a congressional mandate.”)
(footnotes omitted).
11
Of course, for reasons already discussed, the President may
decline to follow a law that purports to require the Executive
 20

This case does not involve a Commission decision not to
prosecute violations of federal law. Rather, this case involves
a Commission decision not to follow a law mandating that the
Commission take certain non-prosecutorial action. So the
Executive’s power of prosecutorial discretion provides no
support for the Commission’s inaction and disregard of
federal law here.

IV

At the behest of the Commission, we have repeatedly
gone out of our way over the last several years to defer a
mandamus order against the Commission and thereby give
Congress time to pass new legislation that would clarify this
matter if it so wished. In our decision in August 2012, the
Court’s majority made clear, however, that mandamus likely
would have to be granted at some point if Congress took no
further action. See Order, In re Aiken County, No. 11-1271
(D.C. Cir. Aug. 3, 2012). Since then, Congress has taken no
further action on this matter. At this point, the Commission is
simply defying a law enacted by Congress, and the
Commission is doing so without any legal basis.

We therefore have no good choice but to grant the
petition for a writ of mandamus against the Commission.12

Branch to prosecute certain offenses or offenders. Such a law
would interfere with the President’s Article II prosecutorial
discretion.
12
In his dissent, Chief Judge Garland cites several cases to
explain his vote against granting mandamus in this case. Of the
eight cases he cites, however, five did not involve a statutory
mandate with a defined deadline, as we have here. In the other
three cases, the Court made clear that either the agency had to act or
the Court would grant mandamus in the future. See In re United
 21

This case has serious implications for our constitutional
structure. It is no overstatement to say that our constitutional
system of separation of powers would be significantly altered
if we were to allow executive and independent agencies to
disregard federal law in the manner asserted in this case by

Mine Workers of America International Union, 190 F.3d 545, 554
(D.C. Cir. 1999) (“however modest [an agency’s] personnel and
budgetary resources may be, there is a limit to how long it may use
these justifications to excuse inaction”); Grand Canyon Air Tour
Coalition v. FAA, 154 F.3d 455, 477 (D.C. Cir. 1998) (denying
mandamus partly because “this is not a case where an agency has
been contumacious in ignoring court directions to expedite
decision-making”); In re Barr Laboratories, Inc., 930 F.2d 72, 76
(D.C. Cir. 1991) (mandamus inappropriate where it would interfere
with agency priorities set by applying agency expertise but noting
that “[w]here the agency has manifested bad faith, as by . . .
asserting utter indifference to a congressional deadline, the agency
will have a hard time claiming legitimacy for its priorities”).
Consistent with those precedents, we followed a cautious approach
in our decision more than a year ago when we declined to issue
mandamus against the Commission at that time. But the Court’s
majority clearly warned that mandamus would eventually have to
be granted if the Commission did not act or if Congress did not
change the law. Since then, despite the clear warning, the
Commission has still not complied with the statutory mandate. On
the contrary, the Commission has reaffirmed that it has no plans to
comply with the statutory mandate. In the face of such deliberate
and continued agency disregard of a statutory mandate, our
precedents strongly support a writ of mandamus. Our respectful
factbound difference with Chief Judge Garland, then, is simply that
we believe – especially given the Court’s cautious and incremental
approach in prior iterations of this litigation, the significant amount
of money available for the Commission to continue the licensing
process, and the Commission’s continued disregard of the law –
that the case has by now proceeded to the point where mandamus
appropriately must be granted.
 22

the Nuclear Regulatory Commission. Our decision today
rests on the constitutional authority of Congress, and the
respect that the Executive and the Judiciary properly owe to
Congress in the circumstances here. To be sure, if Congress
determines in the wake of our decision that it will never fund
the Commission’s licensing process to completion, we would
certainly hope that Congress would step in before the current
$11.1 million is expended, so as to avoid wasting that
taxpayer money. And Congress, of course, is under no
obligation to appropriate additional money for the Yucca
Mountain project. Moreover, our decision here does not pre-
judge the merits of the Commission’s consideration or
decision on the Department of Energy’s license application,
or the Commission’s consideration or decision on any
Department of Energy attempt to withdraw the license
application. But unless and until Congress authoritatively
says otherwise or there are no appropriated funds remaining,
the Nuclear Regulatory Commission must promptly continue
with the legally mandated licensing process. The petition for
a writ of mandamus is granted.

So ordered.
 RANDOLPH, Senior Circuit Judge, concurring: I join all of
the majority opinion except part III, which I believe is
unnecessary to decide the case.

I also believe some background information is needed to
understand what has occurred here. The Nuclear Waste Policy
Act states that the Commission “shall consider” the Yucca
Mountain license application and “shall issue a final decision
approving or disapproving” the application “not later than” three
years after its submission. 42 U.S.C. § 10134(d). The
Department of Energy filed the Yucca Mountain application in
June 2008, see Yucca Mountain; Notice of Receipt and
Availability of Application, 73 Fed. Reg. 34,348 (June 17,
2008), and Congress later provided substantial appropriations
for the licensing process, see U.S. NUCLEAR REGULATORY
COMMISSION, NUREG-1100, VOL. 26, CONGRESSIONAL BUDGET
JUSTIFICATION FOR FY 2011 94–95 (2010). Although the
Commission had a duty to act on the application and the means
to fulfill that duty, former Chairman Gregory Jaczko
orchestrated a systematic campaign of noncompliance. Jaczko
unilaterally ordered Commission staff to terminate the review
process in October 2010; instructed staff to remove key findings
from reports evaluating the Yucca Mountain site; and ignored
the will of his fellow Commissioners. See U.S. NUCLEAR
REGULATORY COMMISSION, OFFICE OF THE INSPECTOR
GENERAL, OIG CASE NO. 11-05, NRC CHAIRMAN’S
UNILATERAL DECISION TO TERMINATE NRC’S REVIEW OF DOE
YUCCA MOUNTAIN REPOSITORY LICENSE APPLICATION 7–10,
17, 44–46 (2011). These transgressions prompted an
investigation by the Commission’s Inspector General, as well as
a letter from all four of the Commission’s other members
expressing “grave concerns” about Jaczko’s performance in
office. See Matthew Daly, Nuclear Agency’s Commissioners and
Chief Trade War of Words, WASH. POST, Dec. 10, 2011, at A18.
After we heard oral argument in this case, Jaczko resigned.
 2

Today’s judgment should ensure that the Commission’s
next chapter begins with adherence to the law. In the Nuclear
Waste Policy Act Congress required the Commission to rule on
the Yucca Mountain application, and it appropriated funds for
that purpose. The Commission’s duty is to comply with the law
and our duty is to make sure it does so. “Once Congress . . . has
decided the order of priorities in a given area, it is for the
Executive to administer the laws and for the courts to enforce
them when enforcement is sought.” TVA v. Hill, 437 U.S. 153,
194 (1978).
 GARLAND, Chief Judge, dissenting: Mandamus is a “drastic
and extraordinary remedy reserved for really extraordinary
causes.” Cheney v. U.S. Dist. Court for the Dist. of Columbia,
542 U.S. 367, 380 (2004) (internal quotation marks omitted).
Even if a petitioner can show that it has a “clear and
indisputable” right to the writ, issuing the writ remains “a matter
vested in the discretion of the court.” Id. at 381, 391. Likewise,
“mandamus[] does not necessarily follow a finding of a
[statutory] violation.” In re United Mine Workers of Am. Int’l
Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (second alteration in
original) (quoting In re Barr Labs., Inc., 930 F.2d 72, 74 (D.C.
Cir. 1991)). To the contrary, this court has not hesitated to deny
the writ even when an agency has missed a statutory deadline by
far more than the two years that have passed in this case. See id.
at 546, 551 (declining to issue the writ, notwithstanding that the
agency missed an “express” statutory deadline by 8 years in
“clear violation” of the statute).1 Finally, and most relevant

1
See also, e.g., In re Core Commc’ns, Inc., 531 F.3d 849, 850
(D.C. Cir. 2008) (noting that the court had declined to issue the writ
after the agency failed to respond to the court’s remand for 3 years,
but issuing the writ when the delay reached 6 years); Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100-01
(D.C. Cir. 2003) (vacating and remanding the district court’s
determination that a 5-year delay was unreasonable, due to the district
court’s failure to consider the agency’s resource constraints); Grand
Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 477-78 (D.C. Cir. 1998)
(declining to order agency action notwithstanding a 10-year delay in
issuing a rule and a 20-year delay in achieving the rule’s statutory
objective); In re Int’l Chem. Workers Union, 958 F.2d 1144, 1146-47,
1150 (D.C. Cir. 1992) (noting that the court had declined to issue the
writ after a 3-year delay, but issuing the writ when the delay reached
6 years); In re Monroe Commc’ns Corp., 840 F.2d 942, 945-47 (D.C.
Cir. 1988) (declining to issue the writ despite the agency’s 3-year
delay since the ALJ’s initial decision, and 5-year delay since the start
of agency proceedings); Oil, Chem. & Atomic Workers Int’l Union v.
Zegeer, 768 F.2d 1480, 1487-88 (D.C. Cir. 1985) (declining to issue
the writ after a 5-year delay).
 2

here, “[c]ourts will not issue the writ to do a useless thing, even
though technically to uphold a legal right.” United States ex rel.
Sierra Land & Water Co. v. Ickes, 84 F.2d 228, 232 (D.C. Cir.
1936).2

Unfortunately, granting the writ in this case will indeed
direct the Nuclear Regulatory Commission to do “a useless
thing.” The NRC has not refused to proceed with the Yucca
Mountain application. Rather, by unanimous votes of both the
Commission and its Atomic Safety and Licensing Board, it has
suspended the application proceeding until there are sufficient
funds to make meaningful progress. See Mem. and Order at 1-2
(N.R.C. Sept. 9, 2011); Mem. and Order (Suspending
Adjudicatory Proceeding) at 3 (A.S.L.B. Sept. 30, 2011); NRC
Br. 53; NRC Resp. Br. 5; Oral Arg. Tr. 36. Five months prior to
that suspension, Congress had given the Commission only the
minimal amount it requested to “support work related to the
orderly closure of the agency’s Yucca Mountain licensing
support activities.” NRC, CONG. BUDGET JUSTIFICATION FOR
FY 2011, at 95 (2010); see Full-Year Continuing Appropriations
Act, 2011, Pub. L. No. 112-10, § 1423, 125 Stat. 38, 126 (2011).
The following year, Congress completely zeroed out the
Commission’s funding for the project. And the year following
that -- after we held this case in abeyance so that Congress could
indicate whether it intended to fund the project going forward,
see Order, In re Aiken County, No. 11-1271 (D.C. Cir. Aug. 3,
2012) -- Congress once again appropriated no money for Yucca
Mountain activities.

2
See Weber v. United States, 209 F.3d 756, 760 (D.C. Cir. 2000)
(declaring that the writ “is not to be granted in order to command a
gesture”); Realty Income Trust v. Eckerd, 564 F.2d 447, 458 (D.C. Cir.
1977) (holding that “equity should not require the doing of a ‘vain or
useless thing’”).
 3

As a consequence, the agency has only about $11 million
left in available funds. No one disputes that $11 million is
wholly insufficient to complete the processing of the
application. By way of comparison, the Commission’s budget
request for the most recent year in which it still expected the
Yucca Mountain proceeding to move forward was $99.1 million.
See Inspector Gen. Mem. at 8 (June 6, 2011) (describing NRC’s
FY 2010 performance budget request, which Congress did not
grant).3 The only real question, then, is whether the

3
To put the size of the application process in concrete terms, at
the time the NRC suspended its licensing proceeding, 288 contentions
-- claims that must be resolved before the application can be granted --
remained outstanding. See Mem. and Order (Suspending
Adjudicatory Proceeding) at 3 (A.S.L.B. Sept. 30, 2011); see also
Mem. and Order at 2 (N.R.C. June 30, 2009) (noting that the Yucca
Mountain proceeding “is the most extensive . . . in the agency’s
history”). Over 100 expert witnesses had been identified for
depositions, to address contentions on such diverse subjects as
hydrology, geochemistry, climate change, corrosion, radiation,
volcanism, and waste transport -- and those were just for the first
phase of the proceeding. See Mem. and Order (Identifying
Participants and Admitted Contentions), Attachment A at 1-10
(A.S.L.B. May 11, 2009); Dep’t of Energy Mot. to Renew Temporary
Suspension (“DOE Mot.”) at 5 n.14 (A.S.L.B. Jan. 21, 2011).

Nor is funding for the NRC the only problem. The Department
of Energy (DOE) is the license applicant and an indispensable party
in the application process; it bears the burden of proof on each of the
remaining 288 contentions. See 10 C.F.R. § 2.325. But Congress has
zeroed out DOE’s Yucca Mountain funding for three years running.
It, too, has only a comparatively small amount of carryover funds
available -- enough for less than two months’ participation. See U.S.
Amicus Br. 6; see also infra note 4.

Of course, processing the application is itself only the tip of the
iceberg. Completing the project, including constructing the Yucca
 4

Commission can make any meaningful progress with $11
million.

The Commission has concluded that it cannot. See NRC
Resp. Br. 5; U.S. Amicus Br. 9; see also NRC Br. 42. And we
are not in a position -- nor do we have any basis -- to second-
guess that conclusion. Two years ago, citing insufficient funds
to proceed and the need to preserve the materials it had
collected, the NRC shuttered the licensing program, dismantled
the computer system upon which it depended, shipped the
documents to storage, and reassigned the program’s personnel
to projects that did have congressional funding. See Mem. and
Order at 1-2 (N.R.C. Sept. 9, 2011); NRC Br. 3; Pet’rs Br. 16;
Oral Arg. Tr. 45. The Commission believes it will take a
significant part of the $11 million to get the process started
again. See Oral Arg. Tr. 45-49; see also U.S. Amicus Br. 6.4
Nor would that leave the Commission with the remainder to
spend on moving the application along, however slightly. In
light of the NRC’s previous three years of appropriations
experience, the only responsible use for the remaining money
would be to spend it on putting the materials back into storage --
in order to preserve them for the day (if it ever arrives) that
Congress provides additional funds. See Oral Arg. Tr. 48-49.

Mountain facilities themselves, would require another $50 billion,
none of which has been appropriated. See Oral Arg. Tr. 63.
4
The Department of Energy is in a position similar to that of the
NRC. The DOE office with responsibility for the Yucca Mountain
project ceased operations in September 2010. See DOE Mot. at 4-5.
“An active licensing proceeding would thus require DOE to, among
other things, re-hire employees, enter into new contracts for necessary
services, and re-create capabilities . . . .” Id. at 5; see also supra note
3.
 5

In short, given the limited funds that remain available,
issuing a writ of mandamus amounts to little more than ordering
the Commission to spend part of those funds unpacking its
boxes, and the remainder packing them up again. This exercise
will do nothing to safeguard the separation of powers, which my
colleagues see as imperiled by the NRC’s conduct. See Court
Op. at 7, 21-22. And because “[i]t is within our discretion not
to order the doing of a useless act,” Sierra Land & Water, 84
F.2d at 232, I respectfully dissent.5

5
Cf. In re Barr Labs., 930 F.2d at 76 (“Congress sought to get
generic drugs into the hands of patients at reasonable prices -- fast.
The record before us reflects a defeat of those hopes. There are
probably remedies[, including] more resources. . . . [N]one is within
our power, and a grant of [the] petition [for mandamus] is no remedy
at all.”).