Wednesday, July 6, 2011

Is the NRC acting unconstitutionally?

One federal appellate judge thinks it's on the verge of doing so.  Maybe.

On Friday, the D.C. Circuit decided another Yucca Mountain case, this time dismissing a challenge to the Department of Energy's attempt to withdraw its license application.  What's interesting about the case isn't the opinion of the court, which just applies established jurisdictional doctrines, albeit to a particularly convoluted fact pattern (the court held that the matter won't be ripe until the Nuclear Regulatory Commission decides whether to allow DOE to withdraw the license application).  Instead, the curious portion of the decision comes in Judge Kavanaugh's concurrence.

For nineteen pages, Judge Kavanaugh talks not about the presence of absence of federal jurisdiction in the case at bar, but instead about Humphrey's Executor, the 1935 case that protected commissioners of the Federal Trade Commission from executive removal and thus helped establish the independence of a select subset of federal agencies.  He explains the decision's history, why it leads to (in his view) odd and anti-democratic consequences, and how the Obama Administration's current Yucca Mountain quandaries illustrate Humphrey's Executor's lingering effects.  He closes by describing ways in which the Supreme Court and Congress might limit Humphrey's Executor's reach.

Why write all this?  None of the discussion is necessary to understand the outcome of the case at bar or the basis for Judge Kavanaugh's concurrence.  Nor does Yucca Mountain provide a basis for some bold new insight into the debates about independent agencies and unitary executives, for the current impasse just illustrates the potential, not yet fully realized, for independent agencies to act independently.  Instead, Judge Kavanaugh seems to be using this Yucca Mountain decision as a platform to editorialize about the need to overturn Humphrey's Executive.  He disclaims any such intent--"the point of explaining its history and continuing repercussions here is not to suggest that the case should be overturned," he tells us--but if that isn't the point, what is?

Where will this lead?  Perhaps nowhere.  But the current Court obviously has some concerns about independent agencies.  And it's no secret that lower court judges will sometimes use their opinions to try to accelerate the Court's doctrinal trajectory.  That seems to be the goal here; the most likely, albeit disclaimed, point of the opinion is to let the Court know that a promising fact pattern for a unitary executive opinion is brewing, and to encourage the court to write that opinion when the opportunity arises.  Will the Court eventually take the bait?  We'll see.

- Dave Owen

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