“We’re dropping 15 Empire State Buildings into a rural area. Make it make sense.”

That’s what a Virginia county supervisor said just before voting down one of the biggest data center proposals in the country. It’s a scene now playing out from Prince William County to Texas: communities pushing back against the facilities that power artificial intelligence.

The demand is real. AI runs on data centers, and data centers run on enormous amounts of electricity, water, and land. But the decisions about where they go, how they’re powered, and who bears the cost are being made project by project, county by county, often with no national framework to guide them.

This week’s guest, Bob Sussman, former Deputy Administrator of the Environmental Protection Agency, thinks it’s time to step back. In a recent article for the Environmental Law Reporter, he calls for a national moratorium on data centers, paired with a policy framework for what comes next.

In this episode, we ask:

• What would a national pause actually allow us to do?

• Who should be making these decisions, and at what level of government?

• And who’s going to pay for all that power?

At Refounding America, we believe every policy needs an institution capable of carrying it out. The data center boom shows what happens when a fast-moving challenge outpaces the structures meant to govern it. Whatever you think of a moratorium, the question underneath it matters: are our institutions built to handle this?

🎧 Listen to the full episode on Spotify:

📄 Read Bob’s article, “A Call for a National Data Center Moratorium and Policy Framework”: https://www.elr.info/articles/elr-articles/call-national-data-center-moratorium-and-policy-framework

For Dr. James Whittenberger, the EPA’s 1979 review of its ozone standard should have been a straightforward assignment. A former dean of the Harvard School of Public Health, he was asked to chair the subcommittee that the EPA’s own Science Advisory Board had formed to review the science behind the standard. Instead, the relationship between the subcommittee and the agency soured almost immediately. The EPA’s scientific summary bounced between the two three times, drawing sharp criticism each round, until the agency simply went around its advisers. It leaned instead on a hand-picked panel, headed by a scientist who had defended the existing standard before Congress just weeks before his appointment; a study that none of its advisory committees had previously cited; and a procedure that, stripped of its jargon, amounted to asking nine experts for their best guess and averaging the results. The judge reviewing the final decision took the agency to task for its “undisciplined management of scientific advice.” Worse, by openly shopping around for experts, the EPA had given everyone else license to do the same; its own reading of the evidence was now no more credible than industry’s. In Sheila Jasanoff’s account, the episode lives on in the agency’s institutional memory “as an example of how not to use scientific advice.”

Dr. Whittenberger’s subcommittee belonged to a large and mostly unseen part of government: the more than 1,000 federal advisory committees bound by the Federal Advisory Committee Act to standards of openness and balance. They are not decision-makers, but they wield soft power, and agencies are routinely criticized for ignoring them. The government has other sources of scientific advice, too: paid experts hired by the parties to a dispute, the National Academies, and, until Congress shut it down in 1995, the Office of Technology Assessment. But the advisory committees sit closest to the regulatory agencies actually making the decisions. In other words, they are a very important structural answer to the question of how science should influence policymaking. What should that structure look like?

The first principle is collaboration. An agency that relies on science should have an empowered, independent advisory board with which it does not have an adversarial relationship. After the ozone fiasco, the Science Advisory Board used its own appointment powers in the 1980s to build a board that could talk to the EPA, seating industry representatives, public interest groups, and regulatory consultants alongside academics. Structurally, two features made this possible: the board, not the agency, chose its members, and it balanced them deliberately across viewpoints, so that no one camp could claim to have captured it. The same closeness carried a risk. When the board reviewed the EPA’s own research program in 1987-88, under a panel chaired by a former deputy administrator, its recommendations read suspiciously like the agency’s own policy goals. Hence one more structural guardrail: former senior officials should not chair reviews of their old agency.

A board with the right members and the right relationship to its agency must still decide what to do with the evidence before it. Hence the second principle, reconciliation. When stakeholders present conflicting evidence, the board should reconcile competing constructions of the science rather than act as a judge between adversaries. In the mid-1980s, the EPA’s pesticide advisers did the opposite. Reviewing the fumigant EDB and the apple-ripening chemical Alar, they set themselves up as arbiters of “good” and “bad” science, letting manufacturers pick apart the evidence one study at a time while the agency argued that the studies, taken together, pointed toward regulation. Four years of paralysis on Alar followed, broken not by a scientific panel but by a 1989 60 Minutes segment that set off a national panic. The FDA’s Cardio-Renal Advisory Committee demonstrates the alternative. In 1986, it helped end an eight-year drought in approvals of drugs for irregular heartbeats, largely through the design of its meetings. Before each one, a three-member subcommittee circulated a briefing document identifying the points on which consensus was needed, so that the full committee acted as a peer-review body for its own members rather than a tribunal. Industry testified as a source of practical expertise, not as an opposing litigant, and the FDA arrived with no fixed position. In other words, the way in which which the different actors were asked to show up in the decision-making process heavily influenced the FDA’s ability to make a productive decision.

Yet even a well-run board can be sidelined if its role is drawn too narrowly. The third principle is engagement: the board should stay involved in science-policy questions, not only narrow technical ones, and be clear about the scope of its role. In the first ozone review, questions like what counted as an “adverse health effect” were treated as the EPA’s business alone; shut out of them, the scientists were reduced to fighting over the methods of a single paper. The fix was structural on three counts. By the mid-1980s, the reviewers sat on a standing body, the Clean Air Scientific Advisory Committee, rather than a temporary subcommittee, so they built expertise and relationships from one review to the next. Their mandate let them weigh in on science-policy questions wherever they saw fit. And the EPA’s general counsel guaranteed in writing that “if the Administrator doesn’t agree with you, he has to explain the reasons for his differences.” The committee could not overrule the agency, but it could no longer be ignored. As Dr. James Crapo put it, no one was better placed to judge “what represents an adverse effect and how adverse it is” than the people who had generated the data.

The fourth principle, flexibility, is aimed less at the board than at Congress: scientific judgments should not be written into statute. In the mid-1980s, the FDA convened a panel of government scientists to consider whether animal cancer data could soundly predict human risk for six color additives. The panel largely agreed that the extrapolation was fraught. It did not matter. In Public Citizen v. Young, the D.C. Circuit held that the 1960 Delaney Clause allowed only one reading: an additive found to cause cancer in animals had to be denied. Congress had folded a scientific judgment into law and foreclosed the very question the agency’s scientists had been asked to answer. Structurally, the alternative is for Congress to set the goal and leave the science to a process that can revisit it. The Clean Air Act does just that: it directs the EPA to protect public health “with an adequate margin of safety,” and it requires the standards, along with the science behind them, to be reviewed every five years with the advice of an independent scientific committee.

None of these principles guarantees a good outcome, and each carries its own risks. But together they describe an advisory body built to be both believed and heard. The American public is nearly evenly split on the question: 51 percent want scientists to take an active role in policy debates, while 48 percent would rather they stick to establishing facts. The history of the EPA and FDA suggests that the choice is a false one. Scientists who stay out of policy debates do not become more independent; they simply lose their influence, to the detriment of the decision-maker, the scientific community, and the decision itself.

When we call an agency “independent,” often we mean independence from the executive branch: the president cannot fire its leaders at will. But independence is not a single dial to be turned up or down. Agencies do two different kinds of work —finding facts and deciding what to do about them— and each kind of work faces pressure from different places: the White House, the industries being overseen, and the limits of the agency’s own resources. Hence the question for Congress is often less how independent an agency should be in general than which of its functions need insulation, from what, and by which means. Removal protection is only one of those means, and after this summer’s Supreme Court decision in Trump v. Slaughter (2026), it is now an uncertain one. Rules of process, adequate capacity, and careful placement within government remain available as ways to ensure independence. The National Transportation Safety Board shows how they can be combined to protect the finding of facts while leaving the decisions to officials accountable to voters.

When a plane goes down, a train derails, or a pipeline ruptures, it is the NTSB that arrives at the scene, recovers the recorders, and eventually issues a finding of “probable cause.” Yet the Board cannot ground a single airplane or write a single rule. It issues recommendations. Whether to adopt them is up to the Federal Aviation Administration, the other regulators within the Department of Transportation, and Congress. Of the roughly 14,000 recommendations the Board had issued by 2014, about 73 percent had been adopted in whole or in part. In other words, the NTSB has a great deal of influence and almost no official power.

The NTSB makes plain a distinction that runs through the debate over independence: one kind of work agencies do is producing facts: counting, measuring, forecasting, inspecting, investigating. Another is judging what those facts mean and what should be done about them. An accident investigator and a regulator are both experts, but their work differs in kind. A regulator should arguably be able to decide whether a new safety requirement is worth its cost, but not why the plane went down. The findings of an accident investigation, the measurement of inflation, and the conclusions of scientific review are all candidates for insulation from political authority. Tradeoffs between competing values, by contrast, are closer to choices that many would argue should remain accountable to voters.

Historically, the most common tool for insulating an agency has been a limit on the president’s power to remove its leaders. That tool has recently been thrown into doubt: in Trump v. Slaughter, decided on June 29, 2026, the Supreme Court held 6-3 that for-cause removal protections for Federal Trade Commission commissioners violate the Constitution, overruling Humphrey’s Executor (1935). Supporters of the decision describe it as restoring presidential accountability for the executive branch; critics have raised concerns about the independence of agencies long insulated from political direction. The majority left open one possible exception: an agency that exercises “no part of the executive power” need not fall within the rule of presidential removal. Whether a body that only investigates and recommends could qualify is, as yet, an open question. Hence, whatever one’s view of the decision, removal protection is now an uncertain way to insulate fact-finding.

Other safeguards remain available, and they work differently. The first is process. By regulation, NTSB investigations are “fact-finding proceedings with no adverse parties,” and they do not determine “the rights, liabilities, or blame of any person or entity.” By statute, no part of a Board report may be admitted into evidence in a civil suit for damages arising from the accident. Rules of this kind keep the findings out of the political process, and they protect the facts-finding process regardless of who holds office.

The second is capacity. Independence depends not only on who leads an agency but also on whether it has the resources to do its work. The NTSB has about 440 employees and a budget of roughly $145 million, and it is responsible for investigating every civil aviation accident in the country along with major accidents in other modes of transportation. To manage that workload, it relies on the “party system,” in which the manufacturers, operators, unions, and government agencies involved in an accident, including the FAA, contribute technical staff to the investigation. Lawyers and representatives of claimants or insurers are barred. It is important to note what this means: the agency that investigates the FAA and the companies it oversees relies in part on the FAA and those companies to do so. The parties bring knowledge that no government agency could keep on staff, but the arrangement shows that independence from industry is partly a question of capacity.

The third is location: where within government a function sits, and to whom it reports. The NTSB was created in 1967 as part of the new Department of Transportation, alongside the FAA. As its investigations increasingly implicated the FAA’s own conduct, Congress passed the Independent Safety Board Act of 1974, which declared that “no federal agency can properly perform such functions unless it is totally separate and independent from any other… agency of the United States.” In other words, Congress decided that the investigator could not report to the investigated. It reached a similar conclusion that same year about nuclear power. The Atomic Energy Commission had been charged with both promoting and regulating the industry, and “supporters and critics of nuclear power agreed that the promotional and regulatory duties of the AEC should be assigned to different agencies.” The Energy Reorganization Act of 1974 gave the regulatory half to a new Nuclear Regulatory Commission. When Congress later authorized the Chemical Safety Board in 1990, it followed the NTSB’s model explicitly, making the Board’s investigations “completely independent of the rulemaking, inspection, and enforcement authorities of EPA and OSHA.”

Yet many fact-finding functions remain housed within the departments whose policies their findings bear on. The Bureau of Economic Analysis, which produces the nation’s trade statistics, sits within the Department of Commerce, which also carries out much of the government’s trade enforcement. The Energy Information Administration sits within the Department of Energy. There, Congress chose to protect the function by rule rather than by relocation: the EIA’s administrator need not obtain the approval of any other officer of the department to collect or analyze information, or of any officer of the government to publish the agency’s statistical and forecasting reports. Hence, process can stand in for location, at least in part. Congress could reconsider these placements, or extend protections like the EIA’s to other agencies, although any such change would itself need to account for the Court’s reasoning in Slaughter.

The NTSB, the Chemical Safety Board, and the Energy Information Administration each settle the question of independence differently: the first two by placing the investigator outside the department it investigates, the third by writing rules that protect its findings. None of them depends on removal protection alone. Hence, if the Court’s decision makes it harder to protect an agency’s leaders, Congress may do better to protect the agency’s facts: through rules about how findings are produced and published, through the staff and funding to produce them, and through careful choices about where they are produced. The decisions about what to do with those facts can remain with officials accountable to voters. In other words, independence is not something an agency simply has or lacks, but something built, function by function, out of choices Congress makes at an agency’s conception.

When members of the public want to check a government decision about a highway, a transmission line, or the use of public land, the debate over their role is usually framed as a single question: should there be more checks or fewer? Some are concerned that a particularly determined executive might steamroll over public rights; others are concerned that public challenges mire efforts to improve public space in costly litigation. Both are concerned with public access to government decisions, and both tend to treat it as a dial between centralization and decentralization. But public access is less a quantity than a structure. It is built from three distinct levers (standing, procedure, and litigation), each set by different institutions and each adjustable independently of the others. Seen this way, the question shifts from how much the public should be able to check the government to which check fits which decision, and at what stage. For permitting, the relevant levers are procedure and litigation. For executive authority over public land, the most important check may lie less with the courts than with Congress.

The first lever is standing: the question of who may bring a case in federal court at all. For example, across much of the American West, the federal government decides not only whether land is protected but whether it can be mined. In the 1980s, the Bureau of Land Management began reopening areas that had long been closed to mining and other private uses, through roughly 1,250 separate decisions. The National Wildlife Federation argued that the bureau had not followed the federal statutes laying out how those decisions were meant to be made. In Lujan v. National Wildlife Federation (1990), the Supreme Court did not resolve that question. Instead, it held that the Federation lacked standing to bring the suit. Its members had said only that they used land “in the vicinity” of the affected areas. In one case, that meant somewhere in a two-million-acre region of Wyoming where about 4,500 acres had been reopened. That, the Court held, was not enough to show that any member would actually be harmed. Nor could the Federation challenge the bureau’s program as a whole. Because standing requirements derive from the Constitution, Congress cannot remove them by statute. Congress can, however, recognize new kinds of injury by statute, and a court might accept a statute recognizing an interest like that of the Federation’s members, although that outcome is uncertain.

The second lever is procedure and approvals: the number of reviews, analyses, and permits a project must obtain. Unlike standing, this lever is not held in one place. It is spread across agencies, commissions, and legislatures at every level of government, and each can stop a project on its own. The experience of Clean Line Energy, founded in 2009 to build five long-haul transmission lines stretching from New Mexico to Tennessee, illustrates this lever. Its projects encountered a denial by Missouri’s utility commission, legislation in Iowa restricting above-ground lines of its type, and the withdrawal of an interconnection agreement in Tennessee. When a group of Arkansas landowners sued, a federal judge rejected their complaint. The company wound down in 2019, after investors had put more than $100 million into it, without completing a line of its own. In Clean Line’s case, then, the decisive steps took place at the approval stage rather than in court, and the obstacle was less any single decision than the number of separate authorities whose approval the project needed.

The third lever is litigation: how long, how often, and on what grounds challenges may proceed once a plaintiff is in court. Where standing determines who may enter the courthouse, litigation governs what happens once they are inside. Overton Park is the most widely cited example. In 1969, the Secretary of Transportation approved a route for Interstate 40 through Overton Park, a 342-acre park near the center of Memphis. The six-lane expressway would have required 26 acres of the park and separated its zoo from the rest of the grounds. Under federal law, the Secretary could approve a highway through a public park only if no “feasible and prudent” alternative route existed. A group of private citizens and conservation organizations, Citizens to Preserve Overton Park, brought suit, arguing that the Secretary had not made the required determinations. Unlike the plaintiffs in Lujan, they used the very land at stake, and the question was not whether they could sue but how closely a court should examine the Secretary’s decision. In 1971, the Supreme Court ruled in their favor and returned the case to the district court for a full review of the record. In 1973, the Secretary declined to approve the route, and the highway was never built through the park; several miles constructed nearby remain in use today as Sam Cooper Boulevard. The decision did more than settle one dispute. It established the basic framework that courts still use to review agency decisions, and once that framework existed, others used it: in the decades that followed, similar suits shaped roads, housing, and infrastructure across the country. Marc Dunkelman, in Why Nothing Works, describes this period as a turn toward “Jeffersonian” methods that push power down toward the people.

Because the levers are separate, they can be set separately. For permitting agencies, the most relevant levers are procedure and litigation, which determine which parts of the public can participate in the decision-making process, and when. To assuage concerns about costly delays in construction, standing could be narrowed in exchange for giving affected parties a voice in the decision-making procedure. The spectrum from submitting a public comment to bringing an agency before the courts for months can be understood as a spectrum from voice to veto, and democratic input may be most useful when it is early, inexpensive, and informative. It may be possible, then, to widen the front end of participation while narrowing the back end, through shorter windows for litigation, deadlines for review, and limits on how many times the same objection can be raised.

For questions of executive authority over public land, the most relevant lever is standing, and because standing is constitutional, it may not be resolved by legislation alone. Here the structure points to a different actor. The Constitution gives Congress the power to make “all needful Rules and Regulations” for federal property (Art. IV, § 3, cl. 2), so questions about executive authority over public land are also questions about Congress’s own powers. Congress has its own tools for addressing them: appropriations, oversight, and legislation. The World War II Memorial on the National Mall shows how directly those tools can work. When preservation groups sued to stop its construction at the Rainbow Pool site, Congress passed a 2001 law directing that the memorial be built there without delay and barring judicial review of the approvals for its site and design. An appeals court upheld the law, and the dispute ended. Using those tools requires staff and expertise, however, and House committee staff fell by about half between 1991 and 2015. The structure assigns Congress this role; what it lacks is the capacity to fill it. With greater capacity or political will, Congress would be better positioned to take up these questions directly, and the question of who else may sue might carry less weight.

Each of these situations, in other words, may call for a different solution. There may be no single point between centralization and decentralization at which the system can come to rest. The answer may lie less in finding that point than in attending to structure: recognizing that different decisions may call for different actors and different levers.

What is structural reform? Is it to do with state capacity, the lack of which is caused by a plethora of defects– the excessive number of “veto points” in a given government decision,1 the broken feedback loops between the legislature and the executive branches,2 and the terrible lack of attention paid to customer service3? These are all important parts of the picture. In this article, we will present a fuller picture that captures what we mean by “structure” and ties all of these defects –and others– into a common thread.

We begin with the observation that the federal government is full of very complicated structures. The U.S. Government Manual categorizes over 400 structures into seven different categories, differentiated by, to make a long list brief:4

• Mission

• Measurement of success

• Leadership selection and removal

• Staff quantity, hiring process, and compensation

• Ability to sue and be sued

• Legal form: a department, an independent commission, a government corporation, a private nonprofit chartered by statute, etc.

• Source(s) of funding

• Source(s) of oversight

• Source(s) of veto authority and ability to be vetoed

• Reviewability of decisions in court

Whenever an organization is created or reorganized, it needs to answer each of these “design questions,” which together are meant to enable that organization to achieve its mission. For example, the 1933 Act that created the Tennessee Valley Authority5 created a corporation rather than an agency, with what President Franklin D. Roosevelt called the “flexibility and initiative of private enterprise.” Its employees were exempt from civil service classification, which let it hire out of private industry, and it reinvested its power revenues each year, allowing it to become financially independent over the years. Without these design choices, the TVA would not have become the icon that it is today of what big government can accomplish. Other great examples of structural innovation include:

• The Interstate Commerce Commission (which was the first major federal model of the independent expert regulatory agency)6

• The Judges’ Bill of 1925, which gave the Supreme Court discretion over its own docket and thereby turned it from a court of error correction into the agenda-setting institution it is today7

• The post-war reorganization of the security and defense apparatus8

• The Legislative Reorganization Act of 1946, which consolidated a sprawling committee system and gave Congress a professional staff of its own for the first time9

• The post-war creation of the federal science funding apparatus10

A recent restructuring is the creation of the Department of Homeland Security (DHS) in 2002, which combined twenty-two agencies into one department in the largest federal reorganization since 1947.11

Every purpose needs a structure fit to it, from Congress, which needs to fulfill its purpose of writing legislation and representing the people, to the executive branch, which needs structures that allow it to carry out Congressional mandates. We believe a political tipping point has come for government restructuring, whether through legislation or executive order or some combination of both. Structural reform means investigating every institution whose purpose has outrun its form through the lens of the design principles above. Relying on those principles, on the statutes and case law that shape existing structures, and on the insight of our partners and practitioners, we plan to write the blueprint for the structures that will align our federal government to its purpose in the 21st century.

“The legitimate object of government, is to do for a community of people, whatever they need to have done, but can not do, at all, or can not, so well do, for themselves—in their separate, and individual capacities. In all that the people can individually do as well for themselves, government ought not to interfere.”

–Abraham Lincoln, 1854

Refounding America is a nonpartisan 501(c)(3) working to reform the structure and function of the federal government. Our premise is that the government described by the Constitution and the rule of law requires substantial change to meet the challenges of this century. Voters have called for that change repeatedly and have not yet gotten the response they deserve.

So we plan to refound our government: to build new structures, reimagine or retire those that have failed their purpose, and give each the function the moment demands. Some structures must be brought back into alignment with the wisdom of the Founders, while others must be built for circumstances the Founders never foresaw.

Our chosen method rests on the conviction that an organization succeeds only when its purpose and its structure align. State intention and capacity can rarely be separated. Too much of today’s policy work assigns new ambitions to old structures, or looks solely to the structure as a fix for “capacity”– begging the question, capacity to do what? This doesn’t mean change for its own sake. Plenty of worthwhile reforms need no structural change at all, and some improve state capacity in its thin definition. But idea and implementation are inseparable, and that is why structure is our chosen theme. We use it to ask two things of people that seem to pull in opposite directions. To the visionaries: think more practically; ask what structures would create the incentives to make your idea endure. To the reformers: think bigger– see your initiative not in isolation, but as one part of reimagining how our government works. (For more on what we mean by structural reform, see our second letter here.)

In this time of ferment and dysfunction, when approval ratings for our governmental bodies sit at record lows, we believe the moment calls for something bolder. New, renovated, and shuttered structures –from FDR’s Tennessee Valley Authority to the post-WWII restructuring of the defense and security apparatus– generate their own momentum, mandates, and constituents, and permanently reshape how Americans meet their federal government. When we look around, we see movements from the Recoding America Fund to Abundance, think tanks from Revitalizing American Institutions at the Hoover Institution to the Niskanen Center, and nonprofits from the Government Renewal Project to our own, who are crossing ideological and partisan lines to ask what government could be. Like them, we do not seek incremental change. We seek a wholesale reimagining of government.

—

By 2029, we will publish a compendium of structural reforms that together describe the institutions of a new government. Each proposal will come with draft text –legislation or executive order– that would pass it into law. We are looking for partners across the ideological spectrum, and partners who do not fall on it at all, who can bring their own wisdom and experience to the work. Our work proceeds along three related tracks.

The first is community engagement. We are convening Americans across ideological, geographic, and demographic lines to deliberate about the government they want– to surface assumptions, hear from a cross-section of citizens, and learn how the structures of government shape their lives. We are building a secure platform to host those conversations and synthesize what emerges at scale.

The second is the academy. Many law, political science, and public policy curricula were built for a settled constitutional order, but current events have unsettled it. We begin teaching “Refounding America” at Stanford in fall 2026, with each student’s work feeding directly into the compendium, and we intend to replicate the course at other universities. In this way, we hope to harness the creative energy in our universities to solve this problem.

The third is public debate. The annual Soifer Lectures, beginning with Ellen P. Goodman of Rutgers Law School (2025), continuing with Risa Goluboff of Virginia School of Law (2026), and followed by Martha Minow of Harvard Law School in January 2027, put structural reform before an audience for debate. Each is livestreamed, transcribed, and distributed nationally.

Our first conference meets at Stanford on November 13, 2026. We will take up what the midterm results tell us, and invite scholars and practitioners to lay out the structural problems and the fresh blueprints that will occupy the next two years of our work.

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Lincoln wrote that the legitimate object of government is to do for a community of people what they cannot do, or cannot do as well, for themselves. That standard has not changed. What has changed in this century, however, is nearly everything else: what a community is, what it needs done, and what the government is capable of doing. Answering Lincoln’s question now takes more than new policy; it takes new structures built for new purposes.

This letter is the first of many. We will use them to think out loud, to announce our weekly podcast, and to publish proposals as they take shape. If you are working on a piece of this –a bill, a paper, a court challenge, an agency you know well and have ideas about how to rebuild– we want to hear from you. Subscribe, forward this to someone we should be talking to, and write to us at newsletter@refoundingamerica.org.