Public Citizen v. United States Department of Justice
491 U.S. 440 (1989)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The Federal Advisory Committee Act (FACA) does not apply to a private group that the President or an executive agency consults for advice on nominations. The term "utilized" in the statute is not intended to cover such advisory relationships, particularly when a contrary interpretation would raise serious constitutional questions regarding the separation of powers and the President's appointments power.
Facts:
- Since 1952, the President, through the Department of Justice, has routinely sought advice from the American Bar Association’s Standing Committee on Federal Judiciary (ABA Committee) regarding potential nominees for federal judgeships.
- The American Bar Association is a private, voluntary professional association, and its Standing Committee on Federal Judiciary consists of 14 members chosen by the ABA.
- The ABA Committee receives no federal funds for its work.
- The Department of Justice provides the names of potential nominees to the ABA Committee, which then conducts a confidential investigation.
- The ABA Committee interviews the potential nominee, judges, lawyers, and others to assess the candidate's qualifications.
- Following its investigation, the ABA Committee provides a confidential rating of the nominee (e.g., "well qualified," "qualified," or "not qualified") to the Department of Justice.
- The ABA Committee's rating, but not its full report, is made public only if the candidate is formally nominated and at the request of the Senate Judiciary Committee.
Procedural Posture:
- The Washington Legal Foundation (WLF) requested records and access to meetings from the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee).
- The ABA Committee refused WLF's request.
- WLF sued the Department of Justice in the U.S. District Court for the District of Columbia, seeking a declaration that the ABA Committee was an 'advisory committee' under FACA and an injunction forcing compliance.
- Public Citizen intervened as a plaintiff.
- The District Court held that FACA did apply to the ABA Committee, but that applying the Act in this context was an unconstitutional violation of the separation of powers and the President's appointment power.
- The District Court dismissed the action.
- The plaintiffs, WLF and Public Citizen, appealed directly to the Supreme Court of the United States, which noted probable jurisdiction.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Federal Advisory Committee Act (FACA), which imposes transparency and public access requirements, apply to the American Bar Association's Standing Committee on Federal Judiciary when it is consulted by the Department of Justice for confidential advice on potential federal judicial nominees?
Opinions:
Majority - Justice Brennan
No. The Federal Advisory Committee Act (FACA) does not apply to the Justice Department's consultations with the ABA Committee. Although a literal reading of the word "utilized" in the statute could encompass this relationship, such a reading would lead to absurd results, sweeping in numerous informal consultations Congress did not intend to regulate. The Court must look beyond the naked text to legislative history and statutory purpose, which show FACA was aimed at controlling advisory committees established by or closely tied to the government, primarily to curb wasteful spending and undue influence by special interests, not to regulate the President's method of soliciting confidential advice for a core constitutional function. Moreover, applying FACA to the ABA Committee would raise serious constitutional questions about interference with the President's Article II power to nominate judges, and courts should construe statutes to avoid such constitutional difficulties where possible.
Concurring - Justice Kennedy
Yes. As a matter of statutory construction, FACA's plain language clearly applies to the ABA Committee because the President and the Department of Justice undoubtedly "utilize" it as a preferred source of advice. The majority errs by disregarding the unambiguous text in favor of a speculative inquiry into legislative history to avoid a result it finds undesirable. However, while the statute does apply, its application in this context is unconstitutional. The Constitution, through the Appointments Clause, grants the President the exclusive power to nominate federal judges. Congress cannot intrude upon this core executive function by regulating the President's process for soliciting and receiving confidential advice necessary to carry out that duty. Therefore, while the committee is covered by the statute, enforcing the statute against it would violate the separation of powers.
Analysis:
This case highlights a major jurisprudential clash between purposivism and textualism in statutory interpretation. The majority's approach, relying on legislative history and the canon of constitutional avoidance, effectively narrows the scope of FACA to prevent what it sees as an absurd or constitutionally problematic application. In contrast, Justice Kennedy's textualist concurrence argues for applying the law as written and then confronting the constitutional question directly. The decision creates a significant exception to FACA's transparency requirements, protecting the confidentiality of the executive branch's consultation process for judicial nominations and potentially other sensitive appointments.
Unlock the full brief for Public Citizen v. United States Department of Justice