This Article examines the tensions between Congress, the judiciary, and the President over presidential use of advisory committees. It argues that courts, in attempting to avoid difficult constitutional questions, have misread the Federal Advisory Committee Act (“FACA”). Properly construed, FACA violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees.
The author argues that the President does have the power to consult with outside advisers, and that FACA unconstitutionally infringes upon that power. FACA fails to draw a distinction between congressionally created advisory committees and presidentially created advisory committees, and assumes congressional authority to control both. Thus, where Congress might have the power to compel consultation, in FACA Congress seized the power to forbid it; where Congress might have the power to expand the sources of information available to the President, in FACA Congress seized the power to restrict it. FACA constrains the President's power to consult with advisory committees he has established or utilized, including those that are funded privately. FACA therefore allows the President to acquire information from nongovernmental advisory committees only on Congress' terms. In the process, FACA exceeds the powers of Congress and diminishes long-recognized presidential powers.
104 Yale L.J. 51 (1994).
Bybee, Jay S., "Advising the President: Separation of Powers and the Federal Advisory Committee Act" (1994). Scholarly Works. Paper 360.