U.S. Supreme Court Public Citizen v. Department of
Justice, 491
U.S. 440 (1989) Public Citizen v. United States
Department of Justice No. 88-429 Argued April 17, 1989 Decided June 21, 1989 491
U.S. 440 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA Syllabus To aid the President in fulfilling his constitutional duty to
appoint federal judges, the Department of Justice regularly seeks
advice from the Standing Committee on Federal Judiciary of the
American Bar Association (ABA) regarding potential nominees for
judgeships. The ABA Committee's investigations, reports, and votes
on potential nominees are kept confidential, although its rating of
a particular candidate is made public if he or she is in fact
nominated. Appellant Washington Legal Foundation (WLF) filed suit
against the Justice Department after the ABA Committee refused
WLF's request for the names of potential nominees it was
considering and for its reports and minutes of its meetings. The
action was brought under the Federal Advisory Committee Act (FACA),
which, among other things, defines an "advisory committee" as any
group "established or utilized" by the President or an agency to
give advice on public questions, and requires a covered group to
file a charter, afford notice of its meetings, open those meetings
to the public, and make its minutes, records, and reports available
to the public. Joined by appellant Public Citizen, WLF asked the
District Court to declare the Committee an "advisory group" subject
to FACA's requirements and to enjoin the Department from utilizing
the ABA Committee until it complied with those requirements. The
court dismissed the complaint, holding that the Department's use of
the ABA Committee is subject to FACA's strictures, but ruling that
applying FACA to the ABA Committee would unconstitutionally
infringe on the President's Article II power to nominate federal
judges and violate the doctrine of separation of powers. Held: 1. Appellants have standing to bring this suit. The refusal to
permit them to scrutinize the ABA Committee's activities to the
extent FACA allows constitutes a sufficiently distinct injury to
provide standing, and the fact that other groups or citizens might
make the same complaint as appellants does not lessen that injury.
Moreover, although the statute's Page 491 U. S. 441 disclosure exemptions might bar public access to many of the
meetings appellants seek to attend and many of the documents they
wish to view, the exemptions probably would not deny access to all
meetings and documents, particularly discussions and documents
regarding the ABA Committee's overall functioning, and would not
excuse the ABA Committee's noncompliance with FACA's other
provisions, such as those requiring a covered organization to file
a charter and give notice of its meetings. Thus, appellants may
gain significant and genuine relief if they prevail in their suit,
and such potential gains are sufficient to give them standing. Pp. 491 U. S.
448 -451.

															2. FACA does not apply to the Justice Department's solicitation
of the ABA Committee's views on prospective judicial nominees. Pp. 491 U. S.
451 -467.

															(a) Whether the ABA Committee is an "advisory committee" under
FACA depends upon whether it is "utilized" by the President or the
Department within the statute's meaning. Read unqualifiedly, that
verb would extend FACA's coverage to the ABA Committee. However,
since FACA was enacted to cure specific ills -- particularly the
wasteful expenditure of public funds for worthless committee
meetings and biased proposals by special interest groups -- it is
unlikely that Congress intended the statute to cover every formal
and informal consultation between the President or an Executive
agency and a group rendering advice. When the literal reading of a
statutory term compels an odd result, this Court searches beyond
the bare text for other evidence of congressional intent. Pp. 491 U. S.
451 -455.

															(b) Although the question is a close one, a careful review of
the regulatory scheme prior to FACA's enactment and that statute's
legislative history strongly suggests that Congress did not intend
that the term "utilized" apply to the Justice Department's use of
the ABA Committee. FACA's regulatory predecessor, Executive Order
No. 11007, applied to advisory committees formed by a governmental
unit, and to those not so formed when "being utilized by
[the Government] in the same manner as a Government-formed . . .
committee." That the ABA Committee was never deemed to be
"utilized" in the relevant sense is evidenced by the fact that no
President operating under the Order or any Justice Department
official ever applied the Order to the ABA Committee, despite its
highly visible role in advising the Department as to potential
nominees. That is not surprising, since the ABA Committee -- which
was formed privately, rather than at the Government's prompting, to
assist the President in performing a constitutionally specified
function, and which receives no federal funds and is not amenable
to the strict management by agency officials envisaged by the Order
-- cannot easily be said to have been "utilized" in the same manner
as a Government-formed committee. Moreover, FACA adopted many of
the Order's provisions, and there is Page 491 U. S. 442 considerable evidence in the statute's legislative history that
Congress sought only to achieve compliance with FACA's more
stringent requirements by advisory committees already covered by
the Order and by Presidential advisory committees, and that the
statute's "or utilized" phrase was intended to clarify that FACA
applies to committees "established . . . by" the Government in a
generous sense of that term, encompassing groups formed indirectly
by quasi-public organizations "for" public agencies as well as "by"
such agencies themselves. Read in this way, the word "utilized"
does not describe the Justice Department's use of the ABA
Committee. Pp. 491 U. S.
455 -465.

															(c) Construing FACA to apply to the Justice Department's
consultations with the ABA Committee would present formidable
constitutional difficulties. Where, as here, a plausible
alternative construction exists that will allow the Court to avoid
such problems, the Court will adopt that construction. See,
e.g., Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 .
Pp. 491 U. S.
465 -467. 691 F.
Supp. 483 , affirmed.

															BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. KENNEDY, J., filed an
opinion concurring in the judgment, in which REHNQUIST, C.J., and
O'CONNOR, J., joined, post, p. 491 U. S. 467 .
SCALIA, J., took no part in the consideration or decision of the
cases. Page 491 U. S. 443 JUSTICE BRENNAN delivered the opinion of the Court.

															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. I A 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 Page 491 U. S. 444 two; in addition, one member is chosen at large. The ABA
Committee receives no federal funds. It does not recommend persons
for appointment to the federal bench of its own initiative.

															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. [ Footnote 1 ] The potential
nominee's answers and the referral of his or her name to the ABA
Committee are kept confidential. The committee member conducting
the investigation then reviews the legal writings of the potential
nominee, interviews judges, legal scholars, and other attorneys
regarding the potential nominee's qualifications, and discusses the
matter confidentially with representatives of various professional
organizations and other groups. The committee member also
interviews the potential nominee, sometimes with other committee
members in attendance.

															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."
[ Footnote 2 ] Page 491 U. S. 445 The chair then makes a confidential informal report to the
Attorney General's Office. The chair's report discloses the
substance of the committee representative's report to the chair,
without revealing the identity of persons who were interviewed, and
indicates the evaluation the potential nominee is likely to receive
if the Department of Justice requests a formal report.

															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 advisors 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. [ Footnote 3 ] B FACA was born of a desire to assess the need for the

															"numerous committees, boards, commissions, councils, and
similar Page 491 U. S. 446 which have been established to advise officers and agencies in
the executive branch of the Federal Government."

															§ 2(a), as set forth in 5 U.S.C.App. § 2(a). [ Footnote 4 ] Its purpose was to ensure that
new advisory committees be established only when essential, and
that their number be minimized; that they be terminated when they
have outlived their usefulness; that their creation, operation, and
duration be subject to uniform standards and procedures; that
Congress and the public remain apprised of their existence,
activities, and cost; and that their work be exclusively advisory
in nature. § 2(b).

															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 Page 491 U. S. 447 to the public, provided they do not fall within one of the
Freedom of Information Act's exemptions, see 5 U.S.C. §
552, and the Government does not choose to withhold them. § 10(b).
Advisory committees established by legislation or created by the
President or other federal officials must also be "fairly balanced
in terms of the points of view represented and the functions" they
perform. §§ 5(b)(2), (c). Their existence is limited to two years,
unless specifically exempted by the entity establishing them. §
14(a)(1). C 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. [ Footnote
5 ] WLF asked the District Court for the District of Columbia to
declare the ABA Committee an "advisory committee" as FACA defines
that term. WLF further sought an injunction ordering the Justice
Department to cease utilizing the ABA Committee as an advisory
committee until it complied with FACA. In particular, WLF contended
that the ABA Committee must file a charter, afford notice of its
meetings, open those meetings to the public, and make its minutes,
records, and reports available for public inspection and copying. See WLF Complaint, App. 5-11. The Justice Department moved
to dismiss, arguing that the ABA Committee did not fall within
FACA's definition of "advisory committee" Page 491 U. S. 448 and that, if it did, FACA would violate the constitutional
doctrine of separation of powers.

															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. II As a preliminary matter, appellee American Bar Association
contests appellants' standing to bring this suit. [ Footnote 6 ] Appellee's challenge is twofold.
First, it contends that neither appellant has alleged injury
sufficiently concrete and specific to confer standing; rather,
appellee maintains, they have Page 491 U. S. 449 advanced a general grievance shared in substantially equal
measure by all or a large class of citizens, and thus lack standing
under our precedents. Brief for Appellee ABA 12-15. Second,
appellee argues that, even if appellants have asserted a
sufficiently discrete injury, they have not demonstrated that a
decision in their favor would likely redress the alleged harm,
because the meetings they seek to attend and the minutes and
records they wish to review would probably be closed to them under
FACA. Hence, the American Bar Association submits, Article III bars
their suit. Id. at 15-17.

															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 Page 491 U. S. 450 or groups of citizens might make the same complaint after
unsuccessfully demanding disclosure under FACA does not lessen
appellants' asserted injury, any more than the fact that numerous
citizens might request the same information under the Freedom of
Information Act entails that those who have been denied access do
not possess a sufficient basis to sue.

															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 Page 491 U. S. 451 could be closed." Id. at 38-39 (citations omitted). Appellee therefore
concludes:

															"At bottom, there can be no question that application of FACA
will impair the sensitive and necessarily confidential process of
gathering information to assess accurately the qualifications and
character of prospective judicial nominees." Id. at 39. Whatever the merits of these claims, and
whatever their relevance to appellee's constitutional objections to
FACA's applicability, they certainly show, as appellants contend,
that appellants might gain significant relief if they prevail in
their suit. Appellants' potential gains are undoubtedly sufficient
to give them standing. [ Footnote
7 ] III Section 3(2) of FACA, as set forth in 5 U.S.C.App. § 3(2),
defines "advisory committee" as follows:

															"For the purpose of this Act -- "

															" * * * *" "(2) The term 'advisory committee' means any committee, board,
commission, council, conference, panel, task force, or other
similar group, or any subcommittee or other subgroup thereof
(hereafter in this paragraph referred to as 'committee'), which is
-- "

															"(A) established by statute or reorganization plan, or"

															"(B) established or utilized by the President, or"

															"(C) established or utilized by one or more agencies, in the
interest of obtaining advice or recommendations for the President
or one or more agencies or officers of the Federal Government,
except that such term excludes Page 491 U. S. 452 (i) the Advisory Commission on Intergovernmental Relations, (ii)
the Commission on Government Procurement, and (iii) any committee
which is composed wholly of full-time officers or employees of the
Federal Government."

															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. A 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. [ Footnote
8 ] We are convinced that Congress did not intend that result. A
nodding acquaintance with FACA's purposes, Page 491 U. S. 453 as manifested by its legislative history and as recited in § 2
of the Act, reveals that it cannot have been Congress' intention,
for example, to require the filing of a charter, the presence of a
controlling federal official, and detailed minutes any time the
President seeks the views of the National Association for the
Advancement of Colored People (NAACP) before nominating
Commissioners to the Equal Employment Opportunity Commission, or
asks the leaders of an American Legion Post he is visiting for the
organization's opinion on some aspect of military policy.

															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 , 489 U. S. 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. [ Footnote
9 ] As we Page 491 U. S. 454 said in Church of the Holy Trinity v. United States, 143 U. S. 457 , 143 U. S. 459 (1892):

															"[F]requently words of general meaning are used in a statute,
words broad enough to include an act in question, and yet a
consideration of the whole legislation, or of the circumstances
surrounding its enactment, or of the absurd results which follow
from giving such broad meaning to the words, makes it unreasonable
to believe that the legislator intended to include the particular
act."

															Where the literal reading of a statutory term would "compel an
odd result," Green v. Bock Laundry Machine Co., 490 U. S. 504 , 490 U. S. 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 143 U. S. 472 ; FDIC v. Philadelphia Gear Corp., 476 U.
S. 426 , 476 U. S. 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 , 451 U. S. 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, Page 491 U. S. 455 but to remember that statutes always have some purpose or object
to accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning." Cabell v. Markham, 148 F.2d 737, 739 (CA2), aff'd, 326 U. S. 404 (1945). Looking beyond the naked text for guidance is perfectly
proper when the result it apparently decrees is difficult to fathom
or where it seems inconsistent with Congress' intention, since the
plain-meaning rule is "rather an axiom of experience than a rule of
law, and does not preclude consideration of persuasive evidence if
it exists." Boston Sand & Gravel Co. v. United States, 278 U. S. 41 , 278 U. S. 48 (1928) (Holmes, J.). See also United States v. American
Trucking Assns., Inc., 310 U. S. 534 , 310 U. S.
543 -544 (1940) ("When aid to construction of the meaning
of words, as used in the statute, is available, there certainly can
be no rule of law' which forbids its use, however clear the
words may appear on `superficial examination'") (citations
omitted). 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 491 U. S.
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. B 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 Page 491 U. S. 456 Advisory Committee Act, 10 Harv.J.Legis. 217, 219-221 (1973). An
understanding of those efforts is essential to ascertain the
intended scope of the term "utilize."

															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 Page 491 U. S. 457 department or agency of the Government in the interest of
obtaining advice or recommendations," or

															"not formed by a department or agency, but only during any
period when it is being utilized by a department or agency
in the same manner as a Government-formed advisory committee."

															§ 2(a) (emphasis added). To a large extent, FACA adopted
wholesale the provisions of Executive Order No. 11007. For example,
like FACA, Executive Order No. 11007 stipulated that no advisory
committee be formed or utilized unless authorized by law or
determined as a matter of formal record by an agency head to be in
the public interest, § 3; that all advisory committee meetings be
held in the presence of a Government employee empowered to adjourn
the meetings whenever he or she considered adjournment to be in the
public interest, § 6(b); that meetings only occur at the call of,
or with the advance approval of, a federal employee, § 6(a); that
minutes be kept of the meetings, §§ 6(c), (d); and that committees
terminate after two years unless statute or an agency head decreed
otherwise. § 8.

															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 Page 491 U. S. 458 agency officials envisaged by Executive Order No. 11007 -- the
ABA Committee cannot easily be said to have been "utilized by a
department or agency in the same manner as a Government-formed
advisory committee." That the Executive apparently did not consider
the ABA Committee's activity within the terms of its own Executive
Order is therefore unsurprising.

															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, [ Footnote 10 ] see H.R.Rep. No.
91-1731, pp. 9-10 (1970); H.R.Rep. No. 92-1017, p. 4 (1972); S.Rep.
No. 92-1098, pp. 3-5, 7 (1972), as well as to augment the
restrictions applicable Page 491 U. S. 459 to advisory committees covered by the statute, there is scant
reason to believe that Congress desired to bring the ABA Committee
within FACA's net. FACA's principal purpose was to enhance the
public accountability of advisory committees established by the
Executive Branch and to reduce wasteful expenditures on them. That
purpose could be accomplished, however, without expanding the
coverage of Executive Order No. 11007 to include privately
organized committees that received no federal funds. Indeed, there
is considerable evidence that Congress sought nothing more than
stricter compliance with reporting and other requirements -- which were made more stringent -- by advisory committees already
covered by the Order, and similar treatment of a small class of
publicly funded groups created by the President.

															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. Page 491 U. S. 460 This inference draws support from the earlier House Report which
instigated the legislative efforts that culminated in FACA. That
Report complained that committees "utilized" by an agency -- as
opposed to those established directly by an agency -- rarely
complied with the requirements of Executive Order No. 11007. See H.R.Rep. No. 91-1731, supra, at 15. But it
did not cite the ABA Committee or similar advisory committees as
willful evaders of the Order. Rather, the Report's paradigmatic
example of a committee "utilized" by an agency for purposes of
Executive Order No. 11007 was an advisory committee established by
a quasi-public organization in receipt of public funds, such as the
National Academy of Sciences. [ Footnote 11 ] There is no indication in the Report that a
purely private group like the ABA Committee, that was not formed by
the Executive, accepted no public funds, and assisted the Executive
in performing a constitutionally specified task committed to the
Executive, was within the terms of Executive Order No. 11007 or was
the type of advisory entity that legislation was urgently needed to
address. Page 491 U. S. 461 Paralleling the initial House bill, the Senate bill that grew
into FACA defined "advisory committee" as one "established or
organized" by statute, the President, or an Executive agency. S.
3529, 92d Cong., 2d Sess. §§ 3(1), (2) (1972). Like the House
Report, the accompanying Senate Report stated that the phrase
"established or organized" was to be understood in its

															"most liberal sense, so that, when an officer brings together a
group by formal or informal means, by contract or other
arrangement, and whether or not Federal money is expended, to
obtain advice and information, such group is covered by the
provisions of this bill."

															S.Rep. No. 92-1098, supra, at 8. While the Report
manifested a clear intent not to restrict FACA's coverage to
advisory committees funded by the Federal Government, it did not
indicate any desire to bring all private advisory committees within
FACA's terms. Indeed, the examples the Senate Report offers --

															"the Advisory Council on Federal Reports, the National
Industrial Pollution Control Council, the National Petroleum
Council, advisory councils to the National Institutes of Health,
and committees of the national academies where they are utilized
and officially recognized as advisory to the President, to an
agency, or to a Government official," ibid. -- are limited to groups organized by, or closely
tied to, the Federal Government, and thus enjoying quasi-public
status. Given the prominence of the ABA Committee's role and its
familiarity to Members of Congress, its omission from the list of
groups formed and maintained by private initiative to offer advice
with respect to the President's nomination of Government officials
is telling. If the examples offered by the Senate Committee on
Government Operations are representative, as seems fair to surmise,
then there is little reason to think that there was any support, at
least at the committee stage, for going beyond the terms of
Executive Order No. 11007 to regulate comprehensively the workings
of the ABA Committee.

															It is true that the final version of FACA approved by both
Houses employed the phrase "established or utilized," Page 491 U. S. 462 and that this phrase is more capacious than the word
"established" or the phrase "established or organized." But its
genesis suggests that it was not intended to go much beyond those
narrower formulations. The words "or utilized" were added by the
Conference Committee to the definition included in the House bill. See H.R.Conf.Rep. No. 92-1403, p. 2 (1972). The Joint
Explanatory Statement, however, said simply that the definition
contained in the House bill was adopted "with modification." Id. at 9. The Conference Report offered no indication that
the modification was significant, let alone that it would
substantially broaden FACA's application by sweeping within its
terms a vast number of private groups, such as the Republican
National Committee, not formed at the behest of the Executive or by
quasi-public organizations whose opinions the Federal Government
sometimes solicits. Indeed, it appears that the House bill's
initial restricted focus on advisory committees established by the
Federal Government, in an expanded sense of the word "established,"
was retained, rather than enlarged, by the Conference Committee. In
the section dealing with FACA's range of application, the
Conference Report stated:

															"The Act does not apply to persons or organizations which have
contractual relationships with Federal agencies nor to advisory
committees not directly established by or for such agencies. Id. at 10 (emphasis added). The phrase 'or utilized'
therefore appears to have been added simply to clarify that FACA
applies to advisory committees established by the Federal
Government in a generous sense of that term, encompassing groups
formed indirectly by quasi-public organizations such as the
National Academy of Sciences 'for' public agencies as well as 'by'
such agencies themselves."

															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 Page 491 U. S. 463 -- such as the groups organized by the National Academy of
Sciences and its affiliates which the Report discussed -- would be
subject to FACA's requirements. And it comports well with the
initial House and Senate bills' limited extension to advisory
groups "established," on a broad understanding of that word, by the
Federal Government, whether those groups were established by the
Executive Branch or by statute or whether they were the offspring
of some organization created or permeated by the Federal
Government. Read in this way, however, the word "utilized" does not
describe the Justice Department's use of the ABA Committee.
Consultations between the Justice Department and the ABA Committee
were not within the purview of Executive Order No. 11007, nor can
the ABA Committee be said to have been formed by the Justice
Department or by some semiprivate entity the Federal Government
helped bring into being.

															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. [ Footnote 12 ] A Page 491 U. S. 464 literalistic reading, however, would catch far more groups and
consulting arrangements than Congress could conceivably have
intended. And the careful review which this interpretive difficulty
warrants of earlier efforts to regulate Page 491 U. S. 465 federal advisory committees and the circumstances surrounding
FACA's adoption strongly suggests that FACA's definition of
"advisory committee" was not meant to encompass the ABA Committee's
relationship with the Justice Department. That relationship seems
not to have been within the contemplation of Executive Order No.
11007. And FACA's legislative history does not display an intent to
widen the Order's application to encircle it. Weighing the
deliberately inclusive statutory language against other evidence of
congressional intent, it seems to us a close question whether FACA
should be construed to apply to the ABA Committee, although, on the
whole, we are fairly confident it should not. There is, however,
one additional consideration which, in our view, tips the balance
decisively against FACA's application. C "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 Page 491 U. S. 466 by which the question may be avoided." Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932) (footnote collecting citations omitted). It has long been an
axiom of statutory interpretation that

															"where an otherwise acceptable construction of a statute would
raise serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is plainly
contrary to the intent of Congress." Edward J. Desartolo Corp. v. Florida Gulf Coast Building
& Construction Trades Council, 485 U.
S. 568 , 485 U. S. 575 (1988). See also St. Martin Evangelical Lutheran Church v.
South Dakota, 451 U. S. 772 , 451 U. S. 780 (1981); NLRB v. Catholic Bishop of Chicago, 440 U.
S. 490 , 440 U. S.
500 -501 (1979); Machinists v. Street, 367 U. S. 740 , 367 U. S.
749 -750 (1961). This approach, we said recently,

															"not only reflects the prudential concern that constitutional
issues not be needlessly confronted, but also recognizes that
Congress, like this Court, is bound by and swears an oath to uphold
the Constitution." Edward J. Desartolo Corp., supra, at 367 U. S. 575 .
Our reluctance to decide constitutional issues is especially great
where, as here, they concern the relative powers of coordinate
branches of government. See American Foreign Service Assn. v.
Garfinkel, 490 U. S. 153 , 490 U. S. 161 (1989) (per curiam). Hence, we are loath to conclude that Congress
intended to press ahead into dangerous constitutional thickets in
the absence of firm evidence that it courted those perils.

															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.
[ Footnote 13 ] Whether or not
the court's conclusion Page 491 U. S. 467 was correct, there is no gainsaying the seriousness of these
constitutional challenges.

															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 , 471 U. S. 96 (1985), quoting Moore Ice Cream Co. v. Rose, 289 U.
S. 373 , 289 U. S. 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 471 U. S. 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 Affirmed. JUSTICE SCALIA took no part in the consideration or decision of
these cases.

															[ Footnote 1 ]

															The Justice Department does not ordinarily furnish the names of
potential Supreme Court nominees to the ABA Committee for
evaluation prior to their nomination, although in some instances
the President has done so. See Brief for Federal Appellee
4-5.

															[ Footnote 2 ]

															The ratings now used in connection with Supreme Court nominees
are "well qualified," "not opposed," and "not qualified." See American Bar Association Standing Committee on Federal
Judiciary, What It Is and How It Works (1983), reprinted in App.
50.

															[ Footnote 3 ]

															The Senate regularly requests the ABA Committee to rate Supreme
Court nominees if the Justice Department has not already sought the
ABA Committee's opinion. As with nominees for other federal
judgeships, the ABA Committee's rating is made public at
confirmation hearings before the Senate Judiciary Committee.

															[ Footnote 4 ]

															Federal advisory committees are legion. During fiscal year 1988,
58 federal departments sponsored 1,020 advisory committees. General
Services Administration, Seventeenth Annual Report of the President
on Federal Advisory Committees 1 (1988). Over 3,500 meetings were
held, and close to 1,000 reports were issued. Ibid. Costs
for fiscal year 1988 totaled over $92 million, roughly half of
which was spent on federal staff support. Id. at 3.

															[ Footnote 5 ]

															WLF originally sued the ABA Committee, its members, and the
American Bar Association, but not the Department of Justice. The
District Court dismissed that complaint on the ground that the
Justice Department was the proper defendant. Washington Legal
Foundation v. American Bar Assn. Standing Comm. on Federal
Judiciary, 648 F.
Supp. 1353 (DC 1986). WLF's appeal on the issue whether a
committee can be sued directly for noncompliance with FACA is
pending before the Court of Appeals. See Brief for
Appellant in No. 88-494, p. 10, n. 9.

															[ Footnote 6 ]

															The American Bar Association was not a party below, but
intervened for purposes of this appeal after the District Court
rendered judgment.

															[ Footnote 7 ]

															The Justice Department concedes that appellants have standing to
challenge the application of at least some of FACA's provisions to
the Justice Department's consultations with the ABA Committee. See Brief for Federal Appellee 11-16. Because those
challenges present the threshold question whether the ABA Committee
constitutes an advisory committee for purposes of FACA, and because
we hold that it does not, we need not address the Department's
claim that appellants lack standing to contest the application of
certain other provisions.

															[ Footnote 8 ]

															FACA provides exceptions for advisory committees established or
utilized by the Central Intelligence Agency or the Federal Reserve
System, § 4(b), as well as for

															"any local civic group whose primary function is that of
rendering a public service with respect to a Federal program, or
any State or local committee, council, board, commission, or
similar group established to advise or make recommendations to
State or local officials or agencies."

															§ 4(c). The presence of these exceptions does little to curtail
the almost unfettered breadth of a dictionary reading of FACA's
definition of "advisory committee."

															[ Footnote 9 ]

															JUSTICE KENNEDY agrees with our conclusion that an unreflective
reading of the term "utilize" would include the President's
occasional consultations with groups such as the NAACP and
committees of the President's own political party. See
post at 491 U. S. 472 .
Having concluded that groups such as these are covered by the
statute when they render advice, however, JUSTICE KENNEDY refuses
to consult FACA's legislative history -- which he later denounces,
with surprising hyperbole, as "unauthoritative materials," post at 491 U. S. 473 ,
although countless opinions of this Court, including many written
by the concurring Justices, have rested on just such materials --
because this result would not, in his estimation, be "absurd," post at 491 U. S. 472 .
Although this Court has never adopted so strict a standard for
reviewing committee reports, floor debates, and other nonstatutory
indications of congressional intent, and we explicitly reject
that standard today, see also infra at 455, even if
"absurdity" were the test, one would think it was met here. The
idea that Members of Congress would vote for a bill subjecting
their own political parties to bureaucratic intrusion and public
oversight when a President or Cabinet officer consults with party
committees concerning political appointments is outlandish. Nor
does it strike us as in any way "unhealthy," post at 491 U. S. 470 ,
or undemocratic, post at 491 U. S. 473 ,
to use all available materials in ascertaining the intent of our
elected representatives, rather than read their enactments as
requiring what may seem a disturbingly unlikely result, provided
only that the result is not "absurd." Indeed, the sounder and more
democratic course, the course that strives for allegiance to
Congress' desires in all cases, not just those where Congress'
statutory directive is plainly sensible or borders on the lunatic,
is the traditional approach we reaffirm today.

															[ Footnote 10 ]

															Neither Public Citizen nor WLF contends that the ABA Committee
is a Presidential advisory committee as Congress understood that
term. Nor does it appear to be one. In a House Report on the
effectiveness of federal advisory committees, which provided the
impetus for legislative proposals that eventually produced FACA,
the Committee on Government Operations noted that Presidential
committees were a special concern because they often consumed large
amounts of federal money and were subject to no controls. The House
Committee, however, defined "Presidential committee" narrowly, "as
a group with either one or all of its members appointed by the
President with a function of advising or making recommendations to
him." H.R.Rep. No. 91-1731, p. 10 (1970). None of the ABA
Committee's members are appointed by the President, nor does the
ABA Committee report directly to him. The House and Senate Reports
accompanying early versions of FACA likewise referred to advisory
committees "formed" or "established" or "organized" by the
President, or to committees created by an Act of Congress to advise
the President -- categories into which the ABA Committee cannot
readily be fitted. See H.R.Rep. No. 92-1017, pp. 4-5
(1972); S.Rep. No. 92-1098, p. 7 (1972). Although FACA itself
provides a more open-ended definition of "Presidential advisory
committee," applying it to "an advisory committee which advises the
President," § 3(4), as set forth in 5 U.S.C. § 3(4), that category
is a species of "advisory committee," and does not purport to cover
committees advising the President that were not "established or
utilized" by him. As FACA's legislative history reveals, the
Presidential advisory committees Congress intended FACA to reach do
not include the ABA Committee.

															[ Footnote 11 ]

															The relevant paragraph of H.R.Rep. No. 91-1731, supra, at 15 (footnotes omitted), reads in full:

															"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 semiprivate 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."

															[ Footnote 12 ]

															Appellants note as well that regulations of the General Services
Administration (GSA), the agency responsible for administering
FACA, define a "utilized" advisory committee as

															"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 491 U. S. 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 , 467 U. S. 390 (1984); Zenith Radio Corp. v. United States, 437 U.
S. 443 , 437 U. S. 450 (1978); General Electric Co. v. Gilbert, 429 U.
S. 125 , 429 U. S. 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 , 380 U. S. 16 (1965); Power Reactor Co. v. Electricians, 367 U.
S. 396 , 367 U. S. 408 (1961); Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 , 288 U. S. 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 429 U. S. 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 491 U. S. 478 , 491 U. S. 480 ,
confuses wish with reality.

															[ Footnote 13 ]

															In addition, appellee American Bar Association contends that
application of FACA to the ABA Committee would impermissibly
interfere with the associational and expressive rights guaranteed
its members by the First Amendment. See Brief for Appellee
ABA 40-48, Brief for People for the American Way Action Fund and
Alliance for Justice as Amicus Curiae 22-29.

															JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE
O'CONNOR join, concurring in the judgment.

															"In a government, where the liberties of the people are to be
preserved . . . the executive, legislative and judicial, should
ever be separate and distinct, and consist Page 491 U. S. 468 of parts, mutually forming a check upon each other."

															C. Pinckney, Observations on the Plan of Government Submitted to
the Federal Convention of May 28, 1787, reprinted in 3 M. Farrand,
Records of the Federal Convention of 1787, p. 108 (rev. ed. 1966).
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 power. 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:

															"The accretion of dangerous power does not come in a day. It
does come, however slowly, from the generative force of unchecked
disregard of the restrictions that fence in even the most
disinterested assertion of authority." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
S. 579 , 343 U. S. 594 (1952) (concurring opinion).

															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 Page 491 U. S. 469 arrives at its interpretation of FACA, which does not accord
proper respect to the finality and binding effect of legislative
enactments. The second question in the case is the extent to which
Congress may interfere with the President's constitutional
prerogative to nominate federal judges. On this issue, which the
Court does not reach because of its conclusion on the statutory
question, I think it quite plain that the application of FACA to
the Government's use of the ABA Committee is unconstitutional. I 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 491 U. S. 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 491 U. S. 454 , a "literalistic reading," ante at 491 U. S. 463 , 491 U. S. 464 ,
and "a dictionary reading" of this word, ante at 491 U. S. 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 491 U. S. 453 .
Reluctance to working with the basic meaning of words in a normal
manner undermines the legal process. This case demonstrates that
reluctance of this Page 491 U. S. 470 sort leads instead to woolly judicial construction that mars the
plain face of legislative enactments.

															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 491 U. S.
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 491 U. S. 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 491 U. S.
453 -454, citing Church of the Holy Trinity v. United
States, 143 U. S. 457 , 143 U. S. 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 , 333 U. S. 27 (1948), that "Congress could not possibly have intended," FBI v. Abramson, 456 U. S. 615 , 456 U. S. 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, Page 491 U. S. 471 i.e., where it is quite impossible that Congress could
have intended the result, see ibid., and where the alleged
absurdity is so clear as to be obvious to most anyone. A few
examples of true absurdity are given in the Holy Trinity decision cited by the Court, ante at 491 U. S. 454 ,
such as where a sheriff was prosecuted for obstructing the mails
even though he was executing a warrant to arrest the mail carrier
for murder, or where a medieval law against drawing blood in the
streets was to be applied against a physician who came to the aid
of a man who had fallen down in a fit. See 143 U.S. at 143 U. S.
460 -461. In today's opinion, however, the Court
disregards the plain language of the statute not because its
application would be patently absurd, but rather because, on the
basis of its view of the legislative history, the Court is "fairly
confident" that "FACA should [not] be construed to apply to the ABA
Committee." Ante at 491 U. S. 465 .
I believe the Court's loose invocation of the "absurd result" canon
of statutory construction creates too great a risk that the Court
is exercising its own "WILL instead of JUDGMENT," with the
consequence of "substituti[ng] [its own] pleasure to that of the
legislative body." The Federalist No. 78, p. 469 (C. Rossiter ed.
1961) (A. Hamilton).

															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 common sense 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 Page 491 U. S. 472 recommendations before picking his Cabinet. See ante at
452- 491 U. S.
453 .

															None of these examples demonstrates the kind of absurd
consequences that would justify departure from the plain language
of the statute. A common sense 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 491 U. S. 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). [ Footnote 2/1 ] The Court confuses the two points. The
fact that a particular application of the clear terms of a statute
might be unconstitutional does not, in and of itself, render a
straightforward application of the language absurd, so as to allow
us to conclude that the statute does not apply. See infra at 491 U. S.
481 .

															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 Page 491 U. S. 473 yet not within the statute, because not within its spirit, nor
within the intention of its makers." Holy Trinity, supra, at 143 U. S. 459 .
I cannot embrace this principle. Where it is clear that the
unambiguous language of a statute embraces certain conduct, and it
would not be patently absurd to apply the statute to such conduct,
it does not foster a democratic exegesis for this Court to rummage
through unauthoritative materials to consult the spirit of the
legislation in order to discover an alternative interpretation of
the statute with which the Court is more comfortable. It comes as a
surprise to no one that the result of the Court's lengthy journey
through the legislative history is the discovery of a congressional
intent not to include the activities of the ABA Committee within
the coverage of FACA. The problem with spirits is that they tend to
reflect less the views of the world whence they come than the views
of those who seek their advice.

															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

															"any person, company, partnership, or corporation, in any manner
whatsoever, to prepay the transportation, or in any way assist or
encourage the importation or migration of any alien or aliens, any
foreigner or foreigners, into the United States . . . under
contract or agreement . . . made previous to the importation or
migration of such alien or aliens, foreigner or foreigners, to
perform labor or service of any kind in the United States."

															143 U.S. at 143 U. S. 458 .
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 Page 491 U. S. 474 of the statute, which was conceded to be the case, see
ibid., the Court overrode the plain language, drawing instead
on the background and purposes of the statute to conclude that
Congress did not intend its broad prohibition to cover the
importation of Christian ministers. The central support for the
Court's ultimate conclusion that Congress did not intend the law to
cover Christian ministers is its lengthy review of the "mass of
organic utterances" establishing that "this is a Christian nation,"
and which were taken to prove that it could not

															"be believed that a Congress of the United States intended to
make it a misdemeanor for a church of this country to contract for
the services of a Christian minister residing in another
nation." Id. at 143 U. S. 471 .
I should think the potential of this doctrine to allow judges to
substitute their personal predelictions for the will of the
Congress is so self-evident from the case which spawned it as to
require no further discussion of its susceptibility to abuse.

															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 491 U. S. 458 ,
and, in any event, the language of the statute is "more capacious"
than any of the previous "narrower formulations," ante at 491 U. S. 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 Page 491 U. S. 475 and governing law at the time this bill was introduced,
considered, and enacted. In other words, the background to FACA
cannot be taken to illuminate its breadth precisely because FACA
altered the landscape to address the many concerns Congress had
about the increasing growth and use of advisory committees.

															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:

															"(1) the need for many existing advisory committees has not been
adequately reviewed;"

															"(2) new advisory committees should be established only when
they are determined to be essential, and their number should be
kept to the minimum necessary; " Page 491 U. S. 476 "(3) advisory committees should be terminated when they are no
longer carrying out the purposes for which they were
established;"

															"(4) standards and uniform procedures should govern the
establishment, operation, administration, and duration of advisory
committees;"

															"(5) the Congress and the public should be kept informed with
respect to the number, purpose, membership, activities, and cost of
advisory committees; and"

															"(6) the function of advisory committees should be advisory
only, and that all matters under their consideration should be
determined, in accordance with law, by the official, agency, or
officer involved."

															H.R.Conf.Rep. No. 92-1403, pp. 1-2 (1972).

															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 491 U. S. 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 Page 491 U. S. 477 can be squared with the plain language of the statute. The Court
professes puzzlement because the Report says only that the
Conference Committee modified the definition of "advisory
committee" to include the phrase "or utilized," but does not
explain the extent of the modification in any detail. Ante at 491 U. S.
461 -462. One would have thought at least that the Court
would have been led to consider how the specific purposes Congress
identified for this legislation might shed light on the reasons for
the change.

															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

															"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 Page 491 U. S. 478 advice or recommendations on a specific issue or policy within
the scope of his or her responsibilities in the same manner as that
individual would obtain advice or recommendations from an
established advisory committee."

															52 Fed.Reg. 45930 (1987).

															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 advice or
recommendations of a specific issue or policy." Indeed, the
committee performs no other significant function beyond advising
the Government on judicial appointments. Fourth, the
relation is carried out through what cannot in fairness be denied,
after four decades, to be an "institutional arrangement." The
committee's views are sought on a regular and frequent basis, are
given careful consideration, and are usually followed by the
Department. Fifth, the committee is used to obtain advice
and recommendations on judicial appointments "in the same manner as
. . . an established advisory committee." In this regard, it is
pertinent that the Department discloses to the committee the names
of the candidates and other confidential Government information.
This unusual privilege is normally accorded only to other parts of
the Government.

															The Court concedes that the regulations present difficulties for
its conclusion that FACA does not apply to the ABA Committee. Ante at 491 U. S. 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 491 U. S.
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 Page 491 U. S. 479 quite wrong. The Court does not deny that the committee falls
squarely within the terms of the regulations. The Court's doubts on
this issue stem entirely from the fact that the GSA's annual report
does not list the ABA Committee as one of the advisory committees
covered by FACA. But it seems to me to be without relevance one way
or the other whether the GSA is aware that the regulations cover
the committee. What matters is that the regulations the GSA
adopted, which contain a very reasonable interpretation of the
statute, plainly cover the committee. If the Court's interpretive
approach on this issue were accepted, then the text of the agency's
regulations, for which notice was afforded and upon which comment
was received, would be of no independent force.

															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 491 U. S.
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 Page 491 U. S. 480 at an earlier date, closer to the enactment of the governing
statute." Id. at 429 U. S. 142 .
Here, however, the GSA's regulations are consistent with a
memorandum prepared by the Office of Management and Budget and
distributed to all Government agencies immediately after FACA was
enacted. See 38 Fed.Reg. 2307 (1973) (the "utilized by"
language of FACA would apply, for example, "to an already existing
organization of scholars enlisted by an agency to provide advice on
a continuing basis"). [ Footnote
2/2 ]

															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 429 U. S.
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 , 457 U. S. 141 (1982); see ante at 491 U. S. 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 Page 491 U. S. 481 necessary to implement the Federal Property and Administrative
Services Act of 1949), and it issued its regulations pursuant to
that authority, see 41 CFR §§ 101-6.1001 to 101-6.1035
(1988).

															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 , 285 U. S. 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. Page 491 U. S. 482 The Court's ultimate interpretation of FACA is never clearly
stated, except for the conclusion that the ABA Committee is not
covered. It seems to read the "utilized by" portion of the statute
as encompassing only a committee "established by a quasi-public
organization in receipt of public funds," ante at 491 U. S. 460 ,
or encompassing "groups formed indirectly by quasi-public
organizations such as the National Academy of Sciences," ante at 491 U. S. 462 .
This is not a "fairly possible" construction of the statutory
language, even to a generous reader. I would find the ABA Committee
to be covered by FACA. It is, therefore, necessary for me to reach
and decide the constitutional issue presented. II 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:

															"[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of he supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President Page 491 U. S. 483 alone, in the Courts of Law, or in the Heads of Departments.
[ Footnote 2/3 ]"

															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 the act of nomination, [the President's] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation
of the Senate, should fill an office, his responsibility would be
as complete as if he were to make the final
appointment."

															The Federalist No. 76, 456-457 (C. Rossiter ed. 1961) (emphasis
added). And again:

															"It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one
choice of the Executive, and oblige him to make another; but they
cannot themselves choose -- they can only ratify or reject
the choice he may have made." Id. No. 66, at 405 (emphasis in original). [ Footnote 2/4 ] Page 491 U. S. 484 Indeed, the sole limitation on the President's power to nominate
these officials is found in the Incompatability Clause, which
provides that

															"[n]o Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been created, or
the Emoluments whereof shall have been increased during such
time."

															U.S.Const., Art. I, § 6, cl. 2.

															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 , 487 U. S. 695 (1988), quoting Nixon v. Administrator of General
Services, 433 U. S. 425 , 433 U. S. 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 , 272 U. S.
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 Page 491 U. S. 485 focuses on the extent to which [the congressional restriction]
prevents the Executive Branch from accomplishing its
constitutionally assigned functions,"

															and that we would invalidate the statute only if the potential
for disruption of the President's constitutional functions were
present and if "that impact [were not] justified by an overriding
need to promote objectives within the constitutional authority of
Congress." 433 U.S. at 433 U. S. 443 . See also United States v. Nixon, 418 U.
S. 683 , 418 U. S.
703 -707 (1974) (Executive privilege).

															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 419 U. S. 266 . See also Ex parte
Garland , 4 Wall. 333, 71 U. S. 380 (1867). Page 491 U. S. 486 INS v. Chadha, 462 U. S. 919 (1983), is another example of the Court's refusal to apply a
balancing test to assess the validity of an enactment which
interferes with a power that the Constitution, in express terms,
vests within the exclusive control of the President. In Chadha, the Court struck down a legislative veto provision
in the Immigration and Nationality Act on the ground, inter
alia, that it violated the explicit constitutional requirement
that all legislation be presented to the President for his
signature before becoming law. Id. at 462 U. S.
946 -948, 462 U. S.
957 -959. In so holding, the Court did not ask whether
the "overriding need to promote objectives within the
constitutional authority of Congress" justified this intrusion upon
the Executive's prerogative, but rather stated that the lawmaking
process must adhere in strict fashion to the

															"[e]xplicit and unambiguous provisions of the Constitution
[which] prescribe and define the respective functions of the
Congress and of the Executive in the legislative process." Id. at 462 U. S. 945 .
[ Footnote 2/5 ]

															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 Page 491 U. S. 487 common law suit becomes available is $1,000 instead of $20, as
the Constitution provides. See U.S.Const., Amdt. 7. These
minor adjustments might be seen as desirable attempts to modernize
the original constitutional provisions, but where the Constitution
draws a clear line, we may not engage in such tinkering.

															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 , 488 U. S.
380 -381 (1989); Humphrey's Executor v. United
States, 295 U. S. 602 , 295 U. S. 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 491 U. S. 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. Page 491 U. S. 488 In doing so, it rejected outright the arguments advanced by the
Federal Election Commission and various amici that,
because the Constitution gave Congress "explicit and plenary
authority to regulate [the] field of activity" at issue (federal
elections), and because Congress "had good reason[s] for not
[creating] a commission composed wholly of Presidential
appointees," that Congress could allow these officials to be
appointed to their positions without complying with the strict
letter of the Appointments Clause. As we stated there:

															"While one cannot dispute the basis for [Congress' concern that
an election commission exist not in whole of presidential
appointees] as a practical matter, it would seem that those who
sought to challenge incumbent Congressmen might have equally good
reason to fear a Commission which was unduly responsive to members
of Congress whom they were seeking to unseat. But such fears,
however rational, do not by themselves warrant a distortion of the
Framers' work. " Id. at 424 U. S. 134 (emphasis added).

															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 80 U. S. 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 Page 491 U. S. 489 nominate federal judges is enough to invalidate the Act. "We
think it unnecessary to enlarge." Ibid. For these reasons, I concur in the judgment affirming the
District Court.

															[ Footnote 2/1 ]

															I do not address here any possible problems under the First
Amendment with the application of FACA to the ABA Committee.

															[ Footnote 2/2 ]

															Although the Court cites six cases to support the view that a
noncontemporaneous agency interpretation of the governing statute
is entitled to less deference from a reviewing court, five of the
cases do not stand for that proposition, but only quote one another
on the general issue. In fact, in those cases, the Court did defer
to agency regulations because they were promulgated pursuant to
statutory authority, constituted reasonable interpretations and
practical applications of the statutory language, and reflected a
consistent agency position of long standing. See ante at 491 U. S.
464 -465, n. 12 (citing cases). All those points are true
in the case before us.

															[ Footnote 2/3 ]

															No issue has been raised in this suit with respect to the
Congress' power to vest the appointment of "inferior" officers in
anyone other than the President. Cf. Morrison v. Olson, 487 U. S. 654 , 487 U. S.
673 -677 (1988).

															[ Footnote 2/4 ]

															Hamilton also explained why it is that the President was given
the sole prerogative of nominating principal officers:

															"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.

															[ Footnote 2/5 ]

															Our decision in Chadha might also be read for the more
general principle that, where an enactment transgresses the
explicit distribution of power in the text of the Constitution,
then, regardless of whether it implicates the Legislative, the
Judicial, or the Executive power, a balancing inquiry is not
appropriate. I need not address the broader principle in this
case.