The Department of Justice regularly seeks advice from the American Bar Association's Standing Committee on Federal Judiciary regarding potential nominees for federal judgeships. The question before us is whether the Federal Advisory Committee Act (FACA), 86 Stat. 770, as amended, 5 U. S. C. App. § 1 et seq. (1982 ed. and Supp. V), applies to these consultations and, if it does, whether its application interferes unconstitutionally with the President's prerogative under Article II to nominate and appoint officers of the United States; violates the doctrine of separation of powers; or unduly infringes the First Amendment right of members of the American Bar Association to freedom of association and expression. We hold that FACA does not apply to this special advisory relationship. We therefore do not reach the constitutional questions presented.
The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Supreme Court Justices and, as established by Congress, other federal judges. Art. II, § 2, cl. 2. Since 1952 the President, through the Department of Justice, has requested advice from the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee) in making such nominations.
The American Bar Association is a private voluntary professional association of approximately 343,000 attorneys. It has several working committees, among them the advisory body whose work is at issue here. The ABA Committee consists of 14 persons belonging to, and chosen by, the American Bar Association. Each of the 12 federal judicial Circuits (not including the Federal Circuit) has one representative on the ABA Committee, except for the Ninth Circuit, which has
Prior to announcing the names of nominees for judgeships on the courts of appeals, the district courts, or the Court of International Trade, the President, acting through the Department of Justice, routinely requests a potential nominee to complete a questionnaire drawn up by the ABA Committee and to submit it to the Assistant Attorney General for the Office of Legal Policy, to the chair of the ABA Committee, and to the committee member (usually the representative of the relevant judicial Circuit) charged with investigating the nominee. See American Bar Association Standing Committee on Federal Judiciary, What It Is and How It Works (1983), reprinted in App. 43-49; Brief for Federal Appellee 2.
Following the initial investigation, the committee representative prepares for the chair an informal written report describing the potential nominee's background, summarizing all interviews, assessing the candidate's qualifications, and recommending one of four possible ratings: "exceptionally well qualified," "well qualified," "qualified," or "not qualified."
If the Justice Department does request a formal report, the committee representative prepares a draft and sends copies to other members of the ABA Committee, together with relevant materials. A vote is then taken and a final report approved. The ABA Committee conveys its rating — though not its final report — in confidence to the Department of Justice, accompanied by a statement whether its rating was supported by all committee members, or whether it only commanded a majority or substantial majority of the ABA Committee. After considering the rating and other information the President and his advisers have assembled, including a report by the Federal Bureau of Investigation and additional interviews conducted by the President's judicial selection committee, the President then decides whether to nominate the candidate. If the candidate is in fact nominated, the ABA Committee's rating, but not its report, is made public at the request of the Senate Judiciary Committee.
FACA was born of a desire to assess the need for the "numerous committees, boards, commissions, councils, and similar
To attain these objectives, FACA directs the Director of the Office of Management and Budget and agency heads to establish various administrative guidelines and management controls for advisory committees. It also imposes a number of requirements on advisory groups. For example, FACA requires that each advisory committee file a charter, § 9(c), and keep detailed minutes of its meetings. § 10(c). Those meetings must be chaired or attended by an officer or employee of the Federal Government who is authorized to adjourn any meeting when he or she deems its adjournment in the public interest. § 10(e). FACA also requires advisory committees to provide advance notice of their meetings and to open them to the public, § 10(a), unless the President or the agency head to which an advisory committee reports determines that it may be closed to the public in accordance with the Government in the Sunshine Act, 5 U. S. C. § 552b(c). § 10(d). In addition, FACA stipulates that advisory committee minutes, records, and reports be made available
In October 1986, appellant Washington Legal Foundation (WLF) brought suit against the Department of Justice after the ABA Committee refused WLF's request for the names of potential judicial nominees it was considering and for the ABA Committee's reports and minutes of its meetings.
Appellant Public Citizen then moved successfully to intervene as a party plaintiff. Like WLF, Public Citizen requested a declaration that the Justice Department's utilization of the ABA Committee is covered by FACA and an order enjoining the Justice Department to comply with FACA's requirements.
The District Court dismissed the action following oral argument. 691 F.Supp. 483 (1988). The court held that the Justice Department's use of the ABA Committee is subject to FACA's strictures, but that "FACA cannot constitutionally be applied to the ABA Committee because to do so would violate the express separation of nomination and consent powers set forth in Article II of the Constitution and because no overriding congressional interest in applying FACA to the ABA Committee has been demonstrated." Id., at 486. Congress' role in choosing judges "is limited to the Senate's advice and consent function," the court concluded; "the purposes of FACA are served through the public confirmation process and any need for applying FACA to the ABA Committee is outweighed by the President's interest in preserving confidentiality and freedom of consultation in selecting judicial nominees." Id., at 496. We noted probable jurisdiction, 488 U.S. 979 (1988), and now affirm on statutory grounds, making consideration of the relevant constitutional issues unnecessary.
As a preliminary matter, appellee American Bar Association contests appellants' standing to bring this suit.
We reject these arguments. Appellee does not, and cannot, dispute that appellants are attempting to compel the Justice Department and the ABA Committee to comply with FACA's charter and notice requirements, and that they seek access to the ABA Committee's meetings and records in order to monitor its workings and participate more effectively in the judicial selection process. Appellant WLF has specifically requested, and been refused, the names of candidates under consideration by the ABA Committee, reports and minutes of the Committee's meetings, and advance notice of future meetings. WLF Complaint, App. 8. As when an agency denies requests for information under the Freedom of Information Act, refusal to permit appellants to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue. Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records. See, e. g., Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989); Department of Justice v. Julian, 486 U.S. 1 (1988); United States v. Weber Aircraft Corp., 465 U.S. 792 (1984); FBI v. Abramson, 456 U.S. 615 (1982); Department of Air Force v. Rose, 425 U.S. 352 (1976). There is no reason for a different rule here. The fact that other citizens
We likewise find untenable the American Bar Association's claim that appellants lack standing because a ruling in their favor would not provide genuine relief as a result of FACA's exceptions to disclosure. Appellants acknowledge that many meetings of the ABA Committee might legitimately be closed to the public under FACA and that many documents might properly be shielded from public view. But they by no means concede that FACA licenses denying them access to all meetings and papers, or that it excuses noncompliance with FACA's other provisions. As Public Citizen contends, if FACA applies to the Justice Department's use of the ABA Committee without violating the Constitution, the ABA Committee will at least have to file a charter and give notice of its meetings. In addition, discussions and documents regarding the overall functioning of the ABA Committee, including its investigative, evaluative, and voting procedures, could well fall outside FACA's exemptions. See Reply Brief for Appellant in No. 88-429, pp. 5-6, and n. 3.
Indeed, it is difficult to square appellee's assertion that appellants cannot hope to gain noteworthy relief with its contention that "even more significant interference [than participation of Government officials in the ABA Committee's affairs] would result from the potential application of the `public inspection' provisions of Section 10 of the Act." Brief for Appellee ABA 36. The American Bar Association explains: "Disclosure and public access are the rule under FACA; the exemptions generally are construed narrowly. In fact, the Government-in-the-Sunshine Act has no deliberative process privilege under which ABA Committee meetings
Section 3(2) of FACA, as set forth in 5 U. S. C. App. § 3(2), defines "advisory committee" as follows:
Appellants agree that the ABA Committee was not "established" by the President or the Justice Department. See Brief for Appellant in No. 88-429, p. 16; Brief for Appellant in No. 88-494, pp. 13, 15-16, 21. Equally plainly, the ABA Committee is a committee that furnishes "advice or recommendations" to the President via the Justice Department. Whether the ABA Committee constitutes an "advisory committee" for purposes of FACA therefore depends upon whether it is "utilized" by the President or the Justice Department as Congress intended that term to be understood.
There is no doubt that the Executive makes use of the ABA Committee, and thus "utilizes" it in one common sense of the term. As the District Court recognized, however, "reliance on the plain language of FACA alone is not entirely satisfactory." 691 F. Supp., at 488. "Utilize" is a woolly verb, its contours left undefined by the statute itself. Read unqualifiedly, it would extend FACA's requirements to any group of two or more persons, or at least any formal organization, from which the President or an Executive agency seeks advice.
Nor can Congress have meant — as a straightforward reading of "utilize" would appear to require — that all of FACA's restrictions apply if a President consults with his own political party before picking his Cabinet. It was unmistakably not Congress' intention to intrude on a political party's freedom to conduct its affairs as it chooses, cf. Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 230 (1989), or its ability to advise elected officials who belong to that party, by placing a federal employee in charge of each advisory group meeting and making its minutes public property. FACA was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals; although its reach is extensive, we cannot believe that it was intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice.
Where the literal reading of a statutory term would "compel an odd result," Green v. Bock Laundry Machine Co., 490 U.S. 504, 509 (1989), we must search for other evidence of congressional intent to lend the term its proper scope. See also, e. g., Church of the Holy Trinity, supra, at 472; FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 432 (1986). "The circumstances of the enactment of particular legislation," for example, "may persuade a court that Congress did not intend words of common meaning to have their literal effect." Watt v. Alaska, 451 U.S. 259, 266 (1981). Even though, as Judge Learned Hand said, "the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing," nevertheless "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary;
Consideration of FACA's purposes and origins in determining whether the term "utilized" was meant to apply to the Justice Department's use of the ABA Committee is particularly appropriate here, given the importance we have consistently attached to interpreting statutes to avoid deciding difficult constitutional questions where the text fairly admits of a less problematic construction. See infra, at 465-467. It is therefore imperative that we consider indicators of congressional intent in addition to the statutory language before concluding that FACA was meant to cover the ABA Committee's provision of advice to the Justice Department in connection with judicial nominations.
Close attention to FACA's history is helpful, for FACA did not flare on the legislative scene with the suddenness of a meteor. Similar attempts to regulate the Federal Government's use of advisory committees were common during the 20 years preceding FACA's enactment. See Note, The Federal
In 1950, the Justice Department issued guidelines for the operation of federal advisory committees in order to forestall their facilitation of anticompetitive behavior by bringing industry leaders together with Government approval. See Hearings on WOC's [Without Compensation Government employees] and Government Advisory Groups before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., pt. 1, pp. 586-587 (1955) (reprinting guidelines). Several years later, after the House Committee on Government Operations found that the Justice Department's guidelines were frequently ignored, Representative Fascell sponsored a bill that would have accorded the guidelines legal status. H. R. 7390, 85th Cong., 1st Sess. (1957). Although the bill would have required agencies to report to Congress on their use of advisory committees and would have subjected advisory committees to various controls, it apparently would not have imposed any requirements on private groups, not established by the Federal Government, whose advice was sought by the Executive. See H. R. Rep. No. 576, 85th Cong., 1st Sess., 5-7 (1957); 103 Cong. Rec. 11252 (1957) (remarks of Rep. Fascell and Rep. Vorys).
Despite Congress' failure to enact the bill, the Bureau of the Budget issued a directive in 1962 incorporating the bulk of the guidelines. See Perritt & Wilkinson, Open Advisory Committees and the Political Process: The Federal Advisory Committee Act After Two Years, 63 Geo. L. J. 725, 731 (1975). Later that year, President Kennedy issued Executive Order No. 11007, 3 CFR 573 (1959-1963 Comp.), which governed the functioning of advisory committees until FACA's passage. Executive Order No. 11007 is the probable source of the term "utilize" as later employed in FACA. The Order applied to advisory committees "formed by a
There is no indication, however, that Executive Order No. 11007 was intended to apply to the Justice Department's consultations with the ABA Committee. Neither President Kennedy, who issued the Order, nor President Johnson, nor President Nixon apparently deemed the ABA Committee to be "utilized" by the Department of Justice in the relevant sense of that term. Notwithstanding the ABA Committee's highly visible role in advising the Justice Department regarding potential judicial nominees, and notwithstanding the fact that the Order's requirements were established by the Executive itself rather than Congress, no President or Justice Department official applied them to the ABA Committee. As an entity formed privately, rather than at the Federal Government's prompting, to render confidential advice with respect to the President's constitutionally specified power to nominate federal judges — an entity in receipt of no federal funds and not amenable to the strict management by
Although FACA's legislative history evinces an intent to widen the scope of Executive Order No. 11007's definition of "advisory committee" by including "Presidential advisory committees," which lay beyond the reach of Executive Order No. 11007,
The House bill which in its amended form became FACA applied exclusively to advisory committees "established" by statute or by the Executive, whether by a federal agency or by the President himself. H. R. 4383, 92d Cong., 2d Sess. § 3(2) (1972). Although the House Committee Report stated that the class of advisory committees was to include "committees which may have been organized before their advice was sought by the President or any agency, but which are used by the President or any agency in the same way as an advisory committee formed by the President himself or the agency itself," H. R. Rep. No. 92-1017, supra, at 4, it is questionable whether the Report's authors believed that the Justice Department used the ABA Committee in the same way as it used advisory committees it established. The phrase "used. . . in the same way" is reminiscent of Executive Order No. 11007's reference to advisory committees "utilized . . . in the same manner" as a committee established by the Federal Government, and the practice of three administrations demonstrates that Executive Order No. 11007 did not encompass the ABA Committee.
It is true that the final version of FACA approved by both Houses employed the phrase "established or utilized,"
Read in this way, the term "utilized" would meet the concerns of the authors of House Report No. 91-1731 that advisory committees covered by Executive Order No. 11007, because they were "utilized by a department or agency in the same manner as a Government-formed advisory committee"
In sum, a literalistic reading of § 3(2) would bring the Justice Department's advisory relationship with the ABA Committee within FACA's terms, particularly given FACA's objective of opening many advisory relationships to public scrutiny except in certain narrowly defined situations.
"When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible
That construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties is undeniable. The District Court declared FACA unconstitutional insofar as it applied to those consultations, because it concluded that FACA, so applied, infringed unduly on the President's Article II power to nominate federal judges and violated the doctrine of separation of powers.
To be sure, "[w]e cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question." United States v. Locke, 471 U.S. 84, 96 (1985), quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933). But unlike in Locke, where "nothing in the legislative history remotely suggest[ed] a congressional intent contrary to Congress' chosen words," 471 U. S., at 96, our review of the regulatory scheme prior to FACA's enactment and the likely origin of the phrase "or utilized" in FACA's definition of "advisory committee" reveals that Congress probably did not intend to subject the ABA Committee to FACA's requirements when the ABA Committee offers confidential advice regarding Presidential appointments to the federal bench. Where the competing arguments based on FACA's text and legislative history, though both plausible, tend to show that Congress did not desire FACA to apply to the Justice Department's confidential solicitation of the ABA Committee's views on prospective judicial nominees, sound sense counsels adherence to our rule of caution. Our unwillingness to resolve important constitutional questions unnecessarily thus solidifies our conviction that FACA is inapplicable.
The judgment of the District Court is
JUSTICE SCALIA took no part in the consideration or decision of these cases.
The Framers of our Government knew that the most precious of liberties could remain secure only if they created a structure of Government based on a permanent separation of powers. See, e. g., The Federalist Nos. 47-51 (J. Madison). Indeed, the Framers devoted almost the whole of their attention at the Constitutional Convention to the creation of a secure and enduring structure for the new Government. It remains one of the most vital functions of this Court to police with care the separation of the governing powers. That is so even when, as is the case here, no immediate threat to liberty is apparent. When structure fails, liberty is always in peril. As Justice Frankfurter stated:
Although one is perhaps more obvious than the other, this suit presents two distinct issues of the separation of powers. The first concerns the rules this Court must follow in interpreting a statute passed by Congress and signed by the President. On this subject, I cannot join the Court's conclusion that the Federal Advisory Committee Act (FACA), 85 Stat. 770, as amended, 5 U. S. C. App. § 1 et seq. (1982 ed. and Supp. V), does not cover the activities of the American Bar Association's Standing Committee on Federal Judiciary in advising the Department of Justice regarding potential nominees for federal judgeships. The result seems sensible in the abstract; but I cannot accept the method by which the Court
The statutory question in this suit is simple enough to formulate. FACA applies to "any committee" that is "established or utilized" by the President or one or more agencies, and which furnishes "advice or recommendations" to the President or one or more agencies. 5 U. S. C. App. § 3(2). All concede that the ABA Committee furnishes advice and recommendations to the Department of Justice and through it to the President. Ante, at 452. The only question we face, therefore, is whether the ABA Committee is "utilized" by the Department of Justice or the President. See ibid.
There is a ready starting point, which ought to serve also as a sufficient stopping point, for this kind of analysis: the plain language of the statute. Yet the Court is unwilling to rest on this foundation, for several reasons. One is an evident unwillingness to define the application of the statute in terms of the ordinary meaning of its language. We are told that "utilize" is "a woolly verb," ibid., and therefore we cannot be content to rely on what is described, with varying levels of animus, as a "literal reading," ante, at 454, a "literalistic reading," ante, at 463, 464, and "a dictionary reading" of this word, ante, at 452, n. 8. We also are told in no uncertain terms that we cannot rely on (what I happen to regard as a more accurate description) "a straightforward reading of `utilize.'" Ante, at 453. Reluctance to working with the basic meaning of words in a normal manner undermines the legal process. These cases demonstrate that reluctance of this
The Court concedes that the Executive Branch "utilizes" the ABA Committee in the common sense of that word. Ibid. Indeed, this point cannot be contested. As the Court's own recitation of the facts makes clear, the Department of Justice has, over the last four decades, made regular use of the ABA Committee to investigate the background of potential nominees and to make critical recommendations regarding their qualifications. See ante, at 443-445. This should end the matter. The Court nevertheless goes through several more steps to conclude that, although "it seems to us a close question," ante, at 465, Congress did not intend that FACA would apply to the ABA Committee.
Although I believe the Court's result is quite sensible, I cannot go along with the unhealthy process of amending the statute by judicial interpretation. Where the language of a statute is clear in its application, the normal rule is that we are bound by it. There is, of course, a legitimate exception to this rule, which the Court invokes, see ante, at 453-454, citing Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892), and with which I have no quarrel. Where the plain language of the statute would lead to "patently absurd consequences," United States v. Brown, 333 U.S. 18, 27 (1948), that "Congress could not possibly have intended," FBI v. Abramson, 456 U.S. 615, 640 (1982) (O'CONNOR, J., dissenting) (emphasis added), we need not apply the language in such a fashion. When used in a proper manner, this narrow exception to our normal rule of statutory construction does not intrude upon the lawmaking powers of Congress, but rather demonstrates a respect for the coequal Legislative Branch, which we assume would not act in an absurd way.
This exception remains a legitimate tool of the Judiciary, however, only as long as the Court acts with self-discipline by limiting the exception to situations where the result of applying the plain language would be, in a genuine sense, absurd,
The Court makes only a passing effort to show that it would be absurd to apply the term "utilize" to the ABA Committee according to its commonsense meaning. It offers three examples that we can assume are meant to demonstrate this point: the application of FACA to an American Legion Post should the President visit that organization and happen to ask its opinion on some aspect of military policy; the application of FACA to the meetings of the National Association for the Advancement of Colored People (NAACP) should the President seek its views in nominating Commissioners to the Equal Employment Opportunity Commission; and the application of FACA to the national committee of the President's political party should he consult it for advice and
None of these examples demonstrate the kind of absurd consequences that would justify departure from the plain language of the statute. A commonsense interpretation of the term "utilize" would not necessarily reach the kind of ad hoc contact with a private group that is contemplated by the Court's American Legion hypothetical. Such an interpretation would be consistent, moreover, with the regulation of the General Services Administration (GSA) interpreting the word "utilize," which the Court in effect ignores. See infra, at 477. As for the more regular use contemplated by the Court's examples concerning the NAACP and the national committee of the President's political party, it would not be at all absurd to say that, under the Court's hypothetical, these groups would be "utilized" by the President to obtain "advice or recommendations" on appointments, and therefore would fall within the coverage of the statute. Rather, what is troublesome about these examples is that they raise the very same serious constitutional questions that confront us here (and perhaps others as well).
Unable to show that an application of FACA according the plain meaning of its terms would be absurd, the Court turns instead to the task of demonstrating that a straightforward reading of the statute would be inconsistent with the congressional purposes that lay behind its passage. To the student of statutory construction, this move is a familiar one. It is, as the Court identifies it, the classic Holy Trinity argument. "[A] thing may be within the letter of the statute and
Lest anyone think that my objection to the use of the Holy Trinity doctrine is a mere point of interpretive purity divorced from more practical considerations, I should pause for a moment to recall the unhappy genesis of that doctrine and its unwelcome potential. In Holy Trinity, the Court was faced with the interpretation of a statute which made it unlawful for
The Church of the Holy Trinity entered into a contract with an alien residing in England to come to the United States to serve as the director and pastor of the church. Notwithstanding the fact that this agreement fell within the plain language
Even if I were inclined to disregard the unambiguous language of FACA, I could not join the Court's conclusions with regard to Congress' purposes. I find the Court's treatment of the legislative history one sided and offer a few observations on the difficulties of perceiving the true contours of a spirit.
The first problem with the Court's use of legislative history is the questionable relevance of its detailed account of Executive practice before the enactment of FACA. This background is interesting but not instructive, for as the Court acknowledges, even the legislative history as presented by the Court "evinces an intent to widen the scope of" the coverage of prior Executive Orders, ante, at 458, and in any event the language of the statute is "more capacious" than any of the previous "narrower formulations," ante, at 462. Indeed, Congress would have had little reason to legislate at all in this area if it had intended FACA to be nothing more than a reflection of the provisions of Executive Order No. 11007, 3 CFR 573 (1959-1963 Comp.), which was already the settled
Another problem with the Court's approach lies in its narrow preoccupation with the ABA Committee against the background of a bill that was intended to provide comprehensive legislation covering a widespread problem in the organization and operation of the Federal Government. The Court's discussion takes portentous note of the fact that Congress did not mention or discuss the ABA Committee by name in the materials that preceded the enactment of FACA. But that is hardly a remarkable fact. The legislation was passed at a time when somewhere between 1,800 and 3,200 target committees were thought to be in existence, see S. Rep. No. 92-1098, pp. 3, 4 (1972), and the congressional Reports mentioned few committees by name. More to the point, its argument reflects an incorrect understanding of the kinds of laws Congress passes: it usually does not legislate by specifying examples, but by identifying broad and general principles that must be applied to particular factual instances. And that is true of FACA.
Finally, though the stated objective of the Court's inquiry into legislative history is the identification of Congress' purposes in passing FACA, the inquiry does not focus on the most obvious place for finding those purposes, which is the section of the Conference Committee Report entitled "Findings and Purposes." That section lists six findings and purposes that underlie FACA:
The most pertinent conclusion to be drawn from this list of purposes is that all of them are implicated by the Justice Department's use of the ABA Committee. In addition, it shows that Congress' stated purposes for addressing the use of advisory committees went well beyond the amount of public funds devoted to their operations, which in any event is not the sole component in the cost of their use; thus the Court errs in focusing on this point.
It is most striking that this section of the Conference Committee Report, which contains Congress' own explicit statement of its purposes in adopting FACA, receives no mention by the Court on its amble through the legislative history. The one statement the Court does quote from this Report, that FACA does not apply "`to advisory committees not directly established by or for [federal] agencies,'" ante, at 462, quoting H. R. Conf. Rep. 92-1403, supra, at 10 (emphasis deleted), is of uncertain value. It is not clear that this passage would exclude the ABA Committee, which was established in 1946 and began almost at once to advise the Government on judicial nominees. It also is not clear why the reasons a committee was formed should determine whether and how they are "utilized by" the Government, or how this consideration
Not only does the Court's decision today give inadequate respect to the statute passed by Congress, it also gives inadequate deference to the GSA's regulations interpreting FACA. I have already mentioned that, under the GSA's interpretation of FACA, the Court's hypothetical applications of the Act to groups such as the American Legion are impossible. More important, however, it is plain that, under the GSA's regulations, the ABA Committee is covered by the Act. The GSA defines a "utilized" advisory committee as
I cannot imagine a better description of the function of the ABA Committee. First, the ABA Committee is "composed in whole or in part of other than full-time officers or employees of the Federal Government." Second, the committee has "an established existence outside the agency seeking its advice." Third, the committee has been adopted by the Department of Justice "as a preferred source from which to obtain
The Court concedes that the regulations present difficulties for its conclusion that FACA does not apply to the ABA Committee. Ante, at 464, n. 12. It nevertheless relegates its entire discussion of this controlling point to a footnote appended as a ragged afterthought to its extensive discussion of the legislative history. See ante, at 463-465, n. 12. The Court offers four reasons for slighting the agency's interpretation in favor of its own. First, we are told that the language of the GSA regulations, like the statute itself, "appears too sweeping" to be read according to its terms. Of course, once again the Court does not mean either that the agency regulation is not a reasonable interpretation of the plain language of the statute, or that the agency interpretation itself would produce absurd consequences. Rather, what the Court means is that the agency regulation is not entirely consistent with the "spirit" of the Act which it professes to have divined from the legislative history. I do not think this a sound reason for ignoring the binding interpretation of the statute rendered by the implementing agency.
Second, the Court tells us that it "is questionable" whether the GSA regulations apply to the ABA Committee. This is
Third, the Court notes that the agency's interpretation was not promulgated until 1983 and not made final until 1987, whereas FACA was passed in 1972. I cannot imagine why it is a sensible principle that an agency regulation which is promulgated a decade after the initial passage of a statute should be given less deference because of the mere passage of time. I would not draw any such distinction one way or the other, but if anything one would think that the GSA's regulation should be entitled to more deference than a regulation promulgated immediately after the passage of a bill, for at least in the situation we have here, we can have some assurance that GSA thought long and hard, based upon considerable experience and the benefits of extensive notice and comment, before it promulgated an administrative rule that has the binding force of law.
The primary case cited in support of the Court's view, see ante, at 464-465, n. 12, citing General Electric Co. v. Gilbert, 429 U.S. 125 (1976), is not at all pertinent. Although in Gilbert the Court mentioned the passage of time in its discussion of the regulations, it made nothing of this point on its own but instead refused to defer to the regulations because they "flatly contradict[ed] the position which the agency had enunciated
The fourth justification the Court offers for ignoring the agency's interpretation is that the GSA lacks statutory authority to issue a binding regulatory interpretation of the term "advisory committee." In Gilbert, for example, the agency which adopted the regulations at issue did not act pursuant to explicit statutory authority to promulgate regulations, and thus its regulations were at most of persuasive rather than controlling force. 429 U. S., at 141-142. But the Court errs in suggesting that the GSA's regulations are mere nonbinding administrative guidelines. The GSA is conceded to be the agency "charged with the administration of [FACA]," Blum v. Bacon, 457 U.S. 132, 141 (1982); see ante, at 463, n. 12; it possesses statutory authority to implement the law by promulgating regulations and performing various other specific tasks that have binding effect on other Government agencies and all advisory committees, see FACA, 5 U. S. C. App. §§ 4(a), 7(a)-7(e), 10(a)(2), 10(a)(3) (1982 ed. and Supp. V); see also 40 U. S. C. § 486(c) (granting statutory authority for the GSA to promulgate regulations
In sum, it is quite desirable not to apply FACA to the ABA Committee. I cannot, however, reach this conclusion as a matter of fair statutory construction. The plain and ordinary meaning of the language passed by Congress governs, and its application does not lead to any absurd results. An unnecessary recourse to the legislative history only confirms this conclusion. And the reasonable and controlling interpretation of the statute adopted by the agency charged with its implementation is also in accord.
The Court's final step is to summon up the traditional principle that statutes should be construed to avoid constitutional questions. Although I agree that we should "first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided," Crowell v. Benson, 285 U.S. 22, 62 (1932), this principle cannot be stretched beyond the point at which such a construction remains "fairly possible." And it should not be given too broad a scope lest a whole new range of Government action be proscribed by interpretive shadows cast by constitutional provisions that might or might not invalidate it. The fact that a particular application of the clear terms of a statute might be unconstitutional does not provide us with a justification for ignoring the plain meaning of the statute. If that were permissible, then the power of judicial review of legislation could be made unnecessary, for whenever the application of a statute would have potential inconsistency with the Constitution, we could merely opine that the statute did not cover the conduct in question because it would be discomforting or even absurd to think that Congress intended to act in an unconstitutional manner. The utter circularity of this approach explains why it has never been our rule.
Although I disagree with the Court's conclusion that FACA does not cover the Justice Department's use of the ABA Committee, I concur in the judgment of the Court because, in my view, the application of FACA in this context would be a plain violation of the Appointments Clause of the Constitution.
The essential feature of the separation-of-powers issue in this suit, and the one that dictates the result, is that this application of the statute encroaches upon a power that the text of the Constitution commits in explicit terms to the President. Article II, § 2, cl. 2, of the Constitution provides as follows:
By its terms, the Clause divides the appointment power into two separate spheres: the President's power to "nominate," and the Senate's power to give or withhold its "Advice and Consent." No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for appointment. As Hamilton emphasized:
In some of our more recent cases involving the powers and prerogatives of the President, we have employed something of a balancing approach, asking whether the statute at issue prevents the President "`from accomplishing [his] constitutionally assigned functions.'" Morrison v. Olson, 487 U.S. 654, 695 (1988), quoting Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977), and whether the extent of the intrusion on the President's powers "is justified by an overriding need to promote objectives within the constitutional authority of Congress." Ibid. In each of these cases, the power at issue was not explicitly assigned by the text of the Constitution to be within the sole province of the President, but rather was thought to be encompassed within the general grant to the President of the "executive Power." U. S. Const., Art. II, § 1, cl. 1. Thus, for example, the relevant aspect of our decision in Morrison involved the President's power to remove Executive officers, a power we had recognized is not conferred by any explicit provision in the text of the Constitution (as is the appointment power), but rather is inferred to be a necessary part of the grant of the "executive Power." See Myers v. United States, 272 U.S. 52, 115-116 (1926). Similarly, in Administrator of General Services, supra, we were confronted with the question of the Executive Branch's power to control the disposition of Presidential materials, a matter which, though vital to the President's ability to perform his assigned functions, is not given to exclusive Presidential control by any explicit provision in the Constitution itself. We said there that "the proper inquiry
In a line of cases of equal weight and authority, however, where the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch. For example, the Constitution confers upon the President the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." U. S. Const., Art. II, § 2, cl. 1. In United States v. Klein, 13 Wall. 128 (1872), the Court considered a federal statute that allowed citizens who had remained loyal to the Union during the Civil War to recover compensation for property abandoned to Union troops during the War. At issue was the validity of a provision in the statute that barred the admission of a Presidential pardon in such actions as proof of loyalty. Although this provision did not impose direct restrictions on the President's power to pardon, the Court held that the Congress could not in any manner limit the full legal effect of the President's power. As we said there: "[I]t is clear that the legislature cannot change the effect of . . . a pardon any more than the executive can change a law." Id., at 148. More than a century later, in Schick v. Reed, 419 U.S. 256 (1974), we reiterated in most direct terms the principle that Congress cannot interfere in any way with the President's power to pardon. The pardon power "flows from the Constitution alone . . . and . . . cannot be modified, abridged, or diminished by the Congress." Id., at 266. See also Ex parte Garland, 4 Wall. 333, 380 (1867).
The justification for our refusal to apply a balancing test in these cases, though not always made explicit, is clear enough. Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself. It is improper for this Court to arrogate to itself the power to adjust a balance settled by the explicit terms of the Constitution. To take an obvious example, it would be improper for us to hold that, although the Constitution sets 35 as the age below which one cannot be President, age 30 would in fact be a permissible construction of this term. See U. S. Const., Art. II, § 1. And it would be equally improper for us to determine that the level of importance at which a jury trial in a
However improper would be these slight adjustments to the explicit and unambiguous balances that are struck in various provisions of the Constitution, all the more improper would it be for this Court, which is, after all, one of the three coequal Branches of the Federal Government, to rewrite the particular balance of power that the Constitution specifies among the Executive, Legislative, and Judicial Departments. This is not to say that each of the three Branches must be entirely separate and distinct, for that is not the governmental structure of checks and balances established by the Framers. See Mistretta v. United States, 488 U.S. 361, 380-381 (1989); Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935). But as to the particular divisions of power that the Constitution does in fact draw, we are without authority to alter them, and indeed we are empowered to act in particular cases to prevent any other Branch from undertaking to alter them.
These considerations are decisive of the suit before us. The President's power to nominate principal officers falls within the line of cases in which a balancing approach is inapplicable. The Appointments Clause sets out the respective powers of the Executive and Legislative Branches with admirable clarity. The President has the sole responsibility for nominating these officials, and the Senate has the sole responsibility of consenting to the President's choice. See supra, at 483. We have, in effect, already recognized as much in Buckley v. Valeo, 424 U.S. 1 (1976). In Buckley, the Court held that the appointment of Federal Election Commissioners through procedures that were inconsistent with those set forth in the Appointments Clause was unconstitutional.
It is also plain that the application of FACA would constitute a direct and real interference with the President's exclusive responsibility to nominate federal judges. The District Court found, "at minimum, that the application of FACA to the ABA Committee would potentially inhibit the President's freedom to investigate, to be informed, to evaluate, and to consult during the nomination process," and that these consequences create an "obvious and significant potential for `disruption' of the President's constitutional prerogative during the nomination process," 691 F.Supp. 483, 493 (DC 1988), and these findings are not contested here. As we said in the context of the pardon power, "[t]he simplest statement is the best." United States v. Klein, 13 Wall., at 148. The mere fact that FACA would regulate so as to interfere with the manner in which the President obtains information necessary to discharge his duty assigned under the Constitution to
For these reasons, I concur in the judgment affirming the District Court.
"The definition, further, states `the term also includes any committee, board, . . . that is not formed by a department or agency, when it is being utilized by a department or agency in the same manner as a Government-formed advisory committee.' Rarely were such committees reported. A great number of the approximately 500 advisory committees of the National Academy of Sciences (NAS) and its affiliates possibly should be added to the above 1800 advisory committees as the NAS committees fall within the intent and literal definition of advisory committees under Executive Order 11007. The National Academy of Sciences was created by Congress as a semi-private organization for the explicit purpose of furnishing advice to the Government. This is done by the use of advisory committees. The Government meets the expense of investigations and reports prepared by the Academy committees at the request of the Government. Yet, very few of the Academy committees were reported by the agencies and departments of the Government."
"a committee or other group composed in whole or in part of other than full-time officers or employees of the Federal Government with an established existence outside the agency seeking its advice which the President or agency official(s) adopts, such as through institutional arrangements, as a preferred source from which to obtain advice or recommendations . . . in the same manner as that individual would obtain advice or recommendations from an established advisory committee." 41 CFR § 101-6.1003 (1988).
Appellants argue that the ABA Committee comes within the terms of this regulatory definition, because it exists outside the Justice Department and because it serves as a "preferred source" of advice, inasmuch as the ABA Committee's recommendations regarding potential judicial nominees are unfailingly requested and accorded considerably more weight than those advanced by other groups. See Brief for Appellant in No. 88-429, pp. 17-18; Brief for Appellant in No. 88-494, pp. 18-20.
This argument is not without force. For several reasons, however, we do not think it conclusive, either alone or together with appellants' arguments from FACA's text and legislative history. The first is that the regulation, like FACA's definition of "advisory committee," appears too sweeping to be read without qualification unless further investigation of congressional intent confirms that reading. And our review of FACA's legislative history and purposes demonstrates that the Justice Department, assisting the Executive's exercise of a constitutional power specifically assigned to the Executive alone, does not use the ABA Committee in what is obviously the "same manner" as federal agencies use other advisory committees established by them or by some other creature of the Federal Government.
Second, appellants' claim that the regulation applies to the ABA Committee is questionable. GSA publishes an annual report listing advisory committees covered by FACA. Although 17 reports have thus far been issued, not once has the ABA Committee been included in that list. The agency's own interpretation of its regulation thus appears to contradict the expansive construction appellants ask us to give it — a fact which, though not depriving the regulation's language of independent force, see post, at 479, nevertheless weakens the claim that the regulation applies to the Justice Department's use of the ABA Committee.
Third, even if the ABA Committee were covered by the regulation, appellants' case would not be appreciably bolstered. Deference to the agency's expertise in interpreting FACA is less appropriate here than it would be were the regulatory definition a contemporaneous construction of the statute, since the current definition was first promulgated in 1983, see 48 Fed. Reg. 19327 (1983), and did not become final until 1987, see 52 Fed. Reg. 45930 (1987) — more than a decade after FACA's passage. See, e. g., Aluminum Co. of America v. Central Lincoln Peoples' Utility Dist., 467 U.S. 380, 390 (1984); Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978); General Electric Co. v. Gilbert, 429 U.S. 125, 142 (1976) (discounting significance of agency interpretive guideline promulgated eight years after statute's enactment, although fact that guideline contradicted agency's earlier position deemed "more importan[t]"); Udall v. Tallman, 380 U.S. 1, 16 (1965); Power Reactor Co. v. Electricians, 367 U.S. 396, 408 (1961); Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315 (1933).
In addition, we owe GSA's regulation diminished deference for a reason independent of its not having been issued contemporaneously with FACA's passage. In General Electric Co. v. Gilbert, supra, we held that an agency's interpretive regulations not promulgated pursuant to express statutory authority should be accorded less weight than "administrative regulations which Congress has declared shall have the force of law, or to regulations which under the enabling statute may themselves supply the basis for imposition of liability." Id., at 141 (citations omitted). GSA's regulatory definition falls into neither category. Section 7(c), as set forth in 5 U. S. C. App. § 7(c), authorizes the Administrator to "prescribe administrative guidelines and management controls applicable to advisory committees, and, to the maximum extent feasible, provide advice, assistance, and guidance to advisory committees to improve their performance." It does not empower the agency to issue, in addition to these guidelines, a regulatory definition of "advisory committee" carrying the force of law. JUSTICE KENNEDY's assertion that GSA's interpretation of FACA's provisions is "binding," post, at 478, 480, confuses wish with reality.
"The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them." The Federalist No. 76, at 455-456.