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Constitutionality of the Federal Advisory 

Committee Act

Without reaching definitive conclusions, this memorandum considers three constitutional questions 

raised by the Federal Advisory Committee Act.

First, is it within Congress’s constitutional powers to regulate advisory committees in general and 

presidential advisory committees in particular?

Second, even if Congress can regulate advisory committees, may it regulate those committees giving 

advice to the President without violating the separation of powers?

Third, even if Congress may regulate those committees giving advice to the President, may the 

President except certain committees from certain regulations because of executive privilege?

December 1, 1974

MEMORANDUM

I. Outline

Is the Federal Advisory Committee Act unconstitutional?

1. Is it beyond Congress’s power to legislate?

a. Not as to committees created or funded by Congress.

b. Not as to agencies created by Congress in their use of advisory 

committees.

c. Perhaps, as to private committees advising the President generally.

d. Most likely, as to private committees advising the President 

about a matter expressly vested in the executive, e.g., pardoning.

e. No case law on point.

i. Trend is to find almost anything within the scope of Congress’s power to legislate.

2. Does the Act unconstitutionally violate the separation of powers?

a. Yes, because it attempts to regulate a power impliedly vested 

exclusively in the President—the power to seek and obtain advice 

where he wishes.

i. Argument by analogy from Myers.
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b. The Act limits the advice the President will be able to receive.

c. Such a limitation impinges on the executive’s inherent power.

i. The limitation is unconstitutional no matter what the subject 

of the advice is.

d. The power to limit committees’ advice is not constitutionally 

distinguishable from the advice from any person.

e. Subordinates to the President exercising powers delegated to 

them may also be protected.

3. Certain committees may be relieved from certain requirements of 

the Act on the basis of executive privilege.

a. Supreme Court has acknowledged the existence of executive 

privilege.

b. The privilege should prevail against an unparticularized call for 

publicizing the contents of a meeting.

c. Executive privilege would not void the Act but merely relieve 

some committees of some requirements—notably the requirement 

that the meeting be open.

i. Question as to the exemption in the Act itself for keeping 

meetings closed.

d. Executive privilege might be claimed with regard to meetings 

of even committees created by Congress.

e. Courts’ dislike of exemption 5 under the FOI Act might augur 

poorly for the executive privilege claim unless rarely invoked.

II. Text

The Federal Advisory Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (1972)

(codified at 5 U.S.C. app. I (Supp. II 1973)), regulates advisory committees 

“established or utilized by the President” as well as those established or utilized by 

agencies and those established by statute or reorganization plan.

Three separable, if not altogether distinct, constitutional questions are raised by 

the Act. First, is it within Congress’s constitutional powers to regulate advisory 

committees in general and presidential advisory committees in particular? Second, 

even if Congress can regulate advisory committees, may it regulate those committees giving advice to the President without violating the separation of powers?
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Third, even if Congress may regulate those committees giving advice to the 

President, may the President except certain committees from certain regulations 

because of executive privilege?

A.

Whatever power Congress has to regulate advisory committees would seem to 

stem from the Necessary and Proper Clause. Moreover, to the extent that Congress 

creates an advisory committee by statute (e.g., the Air Quality Advisory Board, 42 

U.S.C. § 1857e), there would seem no question as to its power to regulate its

existence or the means by which it functions. It would also seem justified for 

Congress to regulate committees not created by it, but which are funded by its 

appropriations, for it would seem within Congress’s power to insure that committees utilizing its monies be constituted and function in accord with its regulations.

Most advisory committees, as defined by the Act, would presumably fit within 

these two categories. Nevertheless, private committees utilized by the government 

for advice without any form of compensation would not be covered (e.g., the ABA 

Committee on the Federal Judiciary). To the extent that such committees were 

utilized by statutory agencies, again Congress would seem to have the power to 

regulate, not the committees themselves, but the means by which they might 

advise agencies created by Congress. That is, it would be within Congress’s power 

to regulate the means by which agencies created by it might be advised, so as to 

diminish the likelihood of private rather than public interests being served by its 

creations.

Still, however, private committees advising the President would not be within 

these theoretical frameworks, and thus it might be argued that the Act’s attempt to 

regulate such committees is beyond Congress’s power. The counterargument, and 

it is not without force, is that to the extent that the advice relates to the execution 

of laws passed by Congress, Congress has an interest, and consequently a power, 

in seeing that advice concerning the administration of its laws is given in such a 

manner as to lessen the likelihood of private interests being served. As for private 

advisory committees, not funded by Congress, advising the President on matters 

entrusted solely to him by the Constitution, there would seem no justification for 

congressional regulation of the manner of their giving advice to the President.

Authority for the proposition that regulation of presidential advisory committees is beyond the powers of Congress to legislate is very meager. Courts rarely 

find laws unconstitutional solely on this basis, and then only with difficulty. See,

e.g., Oregon v. Mitchell, 400 U.S. 112 (1970). The tendency, and especially the 

modern tendency, is to read broadly the power of Congress to legislate.
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B.

Even if the regulation of advisory committees generally and presidential advisory committees in particular is within the subject area of Congress’s power to 

legislate, that regulation might be unconstitutional as a violation of the separation 

of powers. Thus, in Myers v. United States, 272 U.S. 52 (1926), the Supreme 

Court held unconstitutional a law requiring the President to obtain the approval of 

the Senate to remove an officer appointed by him with the advice and consent of 

the Senate. This requirement was considered to violate the separation of powers 

between the Executive and Legislative Branches. So also in Ex parte Garland, 71

U.S. (4 Wall.) 333 (1867), and United States v. Klein, 80 U.S. (13 Wall.) 128 

(1872), the Supreme Court struck down congressional enactments which tended to 

undercut the effect of presidential pardons as unconstitutional infringements on 

executive powers.

Most struggles between the Executive and Legislative Branches do not result in 

court decisions, often because they are considered political questions, so again 

case authority for the unconstitutional legislative infringement of the Executive 

Branch is meager. Both Garland and Klein dealt with restrictions on an express 

presidential power and hence are distinguishable from the Federal Advisory 

Committee Act which, at best, limits an implied right to unrestricted advice. Myers

involved a power implied by the words of Article II, Section 1, Clause 1, that the 

executive power shall be vested in a President, and the words of Article II, Section 3, that the President shall take care that the laws be faithfully executed. While 

Myers has been severely limited by Humphrey’s Executor v. United States, 295 

U.S. 602 (1935), and Wiener v. United States, 357 U.S. 349 (1958), it still remains 

true that removal of executive officers, at least those appointed by the President 

with the advice and consent of the Senate, cannot be restricted or regulated by 

Congress.

The Federal Advisory Committee Act regulates, as well as other committees, 

committees which advise the President, and thereby restricts to some degree his 

ability to seek and obtain advice. The restrictions, indeed, may be great if meetings 

must be open to the public (id. § 10(a)(1)). See Gates v. Schlesinger, 366 F. Supp. 

797 (D.D.C. 1973) (suggesting that exemption 5 of the Freedom of Information 

Act—dealing with interagency memoranda—is not available as an exemption from 

the requirement to have open meetings under the Federal Advisory Committee 

Act). See also Nader v. Dunlop, 370 F. Supp. 177 (D.D.C. 1973) (following 

Gates). Or the restrictions may be fairly minor—e.g., charter requirements (FACA 

§ 9(c)) and requirement of a federal employee attending all meetings (id. § 10(e)).

In any case, these restrictions may be presumed to limit the ability of the President 

to receive advice from whom he seeks it, for private committees faced with certain 

of these requirements might well decline to become involved in an advisory 

capacity with the President, thus limiting the President’s ability to inform himself.
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Opposed to this restriction and consequent limitation of the power to seek and 

obtain advice would be the implied power to seek and obtain advice from whomever the President deemed necessary in order to faithfully execute the laws. This 

would be a power lodged exclusively and inherently in the Executive Branch.

While inherent executive powers may be strictly construed when they conflict with 

congressional enactments, cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 

579, 639–40 (1952) (Jackson, J. concurring), certain powers must exist inherently 

in an executive in order for him to execute. In Myers that was understood to 

include the power to remove officers under his direction, for unless he could 

remove them, they would not be under his direction. In United States v. Nixon, 418 

U.S. 683 (1974), the Court recognized an inherent executive power to keep 

confidential the discussions of persons attempting to decide questions. Again, the 

discussion by the court of the practical considerations involved reinforces the idea 

that in order to fulfill the duties of the executive, certain powers are necessary. The 

same compelling practical considerations suggest that the power to seek advice 

anywhere is also such an inherent power of the Executive. To the extent that the 

Federal Advisory Committee Act restricts that power it would be void.

It is arguable perhaps that the subject about which the President or his agency is 

receiving advice should have some bearing on the ability of Congress to regulate 

the advice. Thus, where the advice bears on a power granted expressly to the 

President, Congress would have the least justification for regulation. Where the 

advice involves how best to execute a law of Congress, Congress would have the 

greatest interest, and consequently power. Nevertheless, it is suggested that the 

subject of the advice is not a substantial consideration, for in either case the 

President is exercising his exclusive power—in one case, for example, the 

pardoning power, and in the other the power to execute the laws. Congress may 

leave a greater or lesser area of discretion or flexibility to the President in the 

execution of its laws by the inclusion of standards or safeguards by which the 

President is bound. But within the area left to the President to execute, it is his 

power which is and must be exercised.

The purpose of the Federal Advisory Committee Act was to guard against 

private interests having an inside track to advising the government, but whether it 

be a presidential advisor, not subject to congressional confirmation, a private 

individual like David Rockefeller, or a private committee of persons like David 

Rockefeller, the President must have the freedom to seek out whom he wishes for 

advice. The Act would restrict only advice from a “committee,” but there is no 

constitutional distinction between the advice of a committee and that of an 

individual; if Congress can regulate the one, it may regulate the other.

In short, however Congress wishes to regulate its own advisory committees and 

its own agencies to insure that the public’s viewpoint is adequately represented, it 

cannot legislate to require the President to hear all sides of an issue before he 

makes a decision.
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The above argument assumed private committees, not funded by Congress. A 

committee might be formed by the President but paid from appropriations (e.g., the 

Clemency Board). Here both Congress and the President have legitimate interests, 

and Congress’s interest in regulation is substantial because its funds are utilized.

How a court might decide this conflict is hard to determine.

Important also would be the availability of such a claim of unconstitutionality 

by officers subordinate to the President with respect to committees advising them.

A clear distinction would be that all such officers hold positions created by 

Congress, which presumably reduces their ability to claim invasion of their offices 

by the branch which created them. A policy argument to support the constitutionality of an inclusion of all officers within the Act, moreover, is that they, unlike the 

President, are not directly responsible to the electorate, so that, while the check on 

the President against serving private rather than public interests is the ballot box, 

his officers are not so checked. Nevertheless, to the extent that the officer is 

exercising presidential powers delegated to him, the same policy arguments can be 

made with respect to his need for unfettered advice. A good example is an agency 

head entrusted by the President with the responsibility for suggesting names of 

persons to be nominated by the President to the Senate for confirmation (e.g., the 

Attorney General with regard to federal judges). Here the officer is acting solely as 

an agent of the President and not in respect to any statutory power given him.

When he receives advice from some committee, that advice is similarly outside the 

scope of legitimate congressional inquiry. This should be especially true because, 

in such a case, Congress (through the Senate) will, or should, independently pass 

on the fitness of the nominee.

C.

The third constitutional question is whether the President may except certain 

committees from certain of the Act’s requirements on the basis of executive 

privilege. The Supreme Court has decided that a constitutional executive privilege 

exists, even if its parameters are not clear. United States v. Nixon, 418 U.S. 683

(1974). While the privilege may not prevail against a particularized need for 

evidence in a criminal trial, it certainly should prevail against a general requirement for open advisory meetings. The practical considerations which compel the 

need for some sort of executive privilege were recognized by the Supreme Court in 

Nixon, and those considerations would be undermined by applications of the Act’s 

requirements in all cases covered by its definitions. Some of the confidentiality 

that might be required may be provided by the Act itself, but if courts are prepared 

to read those exceptions out of the Act, as suggested by Gates and Nader, then 

reliance on executive privilege may be called for.

Executive privilege, unlike the first two constitutional objections, discussed 

above, would probably not void the regulation of the President’s advisory 

committees, but rather would only limit it. Thus, the charter requirement would 
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remain as well as the requirement of notice in the Federal Register. So also, most 

probably, would the requirement of a federal employee attending all meetings of 

the committee.

It might be argued that private committees discussing matters without the presence of the President would not be deserving of executive privilege. First, 

however, discussions by executive officers without the presence of the President 

are sufficient for executive privilege. Second, if the committee’s meeting is 

sufficiently imbued with presidential considerations to bring it within the Act, it is 

sufficiently connected to bring it within executive privilege. Third, the considerations justifying executive privilege mentioned by the Court in Nixon would apply 

equally to a private group advising the President as well as to his own advisers.

A claim of executive privilege might be extended to meetings of advisory 

groups created and/or funded by Congress as well. Executive officers, by analogy, 

hold positions created by Congress and are paid from appropriations but are able to 

invoke executive privilege, when allowed by the President.

Executive privilege could also be a basis for claiming confidentiality of advisory committees advising executive officers as opposed to the President (e.g., the 

ABA Committee on the Federal Judiciary). Thus, since an executive officer can 

claim executive privilege with relation to advice or recommendations of staff 

members, so by analogy should he be able to claim privilege with relation to 

private committees, or for that matter committees created and funded by Congress.

Case law support for the extension of this privilege is lacking, although it is 

settled practice. It is a conflict between Congress and the President which has not 

been put to the courts to decide, although with relation to the Federal Advisory 

Committee Act it would be decided by a court because a private party would be 

the one precluded by executive privilege. The courts’ reactions to attempts by 

agencies to withhold information under the Freedom of Information Act might 

indicate a reluctance to sanction equivalent withholdings under a claim of 

executive privilege.

ANTONIN SCALIA

Assistant Attorney General

Office of Legal Counsel