502



### 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 adv isory committees in particular?

Second, even if Congress can regulate advisory committees, may it regulate those committees g iving
advice to the President without viol ating 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 privil ege?

December 1, 1974

M EMORANDUM

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 us e of advisory
committees.

c. Perhaps, as to private committees advising the President gene rally.

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 Co ngress’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

.Constitutionality of the Federal Advisory Committee Act

503 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 mat ter 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 th e 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 Adv isory Committee Act, Pub. L. No. 92

- 463 , 86 Stat. 770 (1972) (codified at 5 U.S.C. a pp. I ( Supp. II 197 3 ) ) , 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 p residential advisory committees in particular? Second, even if Congress can regulate advisory committees, may it regulate those commi ttees giving advice to the President without violating the separation of p owers?Supplemental Opinions of the Office of Legal Counsel in Volume 1

504 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 function s

. 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 commi ttees 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 g overnment for advice without any form o f 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 lik e lihood of private rather than public interests bei ng 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 counter ar gument, 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

c o ngressional regulation of the manner of their giving advice to the President. Authority for the proposition that regulation of p residential advisory commi ttees is beyond the powers of Congress to legislate is very meager. Courts rarely
find laws unconstitu tional 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.Constitutionality of the Federal Advisory Committee Act

505 B

.
Even if the regulation of advisory c ommittees generally and p residential adv isory 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 t o remove an officer appointed by him with the advice and consent of
the Senate. This requirement was considered to violate the separa tion of powers
between the E xecutive and L egislative B ranches. So also in Ex parte Gar land

, 71 U.S. ( 4 Wall. ) 333 (1867), and United States v. Klein

, 80 U.S. ( 13 Wa ll. ) 128 (1872), the Supreme Court struck down congressional enactments which tended to
undercut the effect of p residential pardons as unconstitutional infringements on executive powers. Most struggles between the E xecutive and L egislative B ranches do not resu lt in court decisions, often because they are considered political questions, so again case authority for the unconstitutional l egislative infringement of the E xecutive
B ranch is meager. Both Garland and Klein dealt with restrictions on an express

p residen tial 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 Ar ticle II, S ection 1, C lause 1, that the executive power shall be vested in a President, and the words of Article II, S ec

tion 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. Un ited 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 ( i d. § 10(a)(1) )

. S ee Gates v. Schlesinger , 366 F. Supp. 797 (D

. D

. C

. 1973) (suggesting that e xemption 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.Supplemental Opinions of the Office of Legal Counsel in Volume 1

506 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 who mever the President deemed necessa ry in order to faithfully execute the laws. This would be a power lodged exclusively and in h erently in the E xecutive B ranch. 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
discus sion 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 i s also such an inherent power of the E xecutive. 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 C ongress, 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
P resident 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 g overnm ent, but whether it be a p residential a dvisor, 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 Congre ss 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.Constitutionality of the Federal Advisory Committee Act

507 The above argumen t 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 l e gitimate interests,
and Congress’s interest in regulatio n 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 committee s 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 constituti ona lity 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 ball ot box, his officers are not so checked. Nevertheless, to the extent that the officer is exercising p residential 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 c ongressional inquiry. This should be especially true because, in such a case, Congres s (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 crimina l trial, it certainly should prevail against a general requir ement 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 w ould 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, bu t rather would only limit it. Thus, the charter requirement wouldSupplemental Opinions of the Office of Legal Counsel in Volume 1

508 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 pre sence 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 priv ilege. Second, if the committee ’ s meeting is sufficiently imbued with p residential considerations to bring it within the Act, it is sufficiently connected to bring it within executive privilege. Third

, the consider ations 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/o r 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 claim ing confidentiality of advis ory 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
Assistan t Attorney General Office of Legal Counsel