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
 5

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
 8

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
 9

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,
 14

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.
 15

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)).
 16

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.