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Speaking of Radioactive Decisions...

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The DC Circuit today decided In re Aiken County, No. 11-1271, a case involving the Yucca Mountain nuclear waste repository in Nevada. The case involves executive discretion regarding enforcement of the law and the limits on that discretion.

The court decided that the Nuclear Regulatory Commission can no longer drag its feet on this controversial question, as it has been doing for years.  Kind of like DoJ has been doing on the AEDPA fast track.  This is illegal.  An administrative agency cannot nullify an Act of Congress just by sitting on its rump, and a court should issue a writ of mandamus when necessary to move it.

The court distinguishes prosecutorial discretion: 

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.
When this authority is abused, the remedies are political and not judicial.

Judge Kavanaugh wrote the opinion of the court.  Judge Randolph concurred.  Judge Garland dissented.

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