ADVISING THE PRESIDENT - SEPARATION OF POWERS AND THE FEDERAL ADVISORY-COMMITTEE ACT

What right does the President have to seek the counsel of outside advisers? This Article examines the tensions between Congress, the judiciary, and the President over presidential use of advisory committees. Professor Bybee argues that the Federal Advisory Committee Act violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees. Bybee approaches the issue from a historical perspective, exploring the extensive history of presidential reliance on outside advisers, Congress' attempts to restrict the President's use of advisory committees, and the development of the Federal Advisory Committee Act. Bybee examines the judiciary's treatment of the Federal Advisory Committee Act, and argues that, in attempting to avoid difficult constitutional questions, courts have misread the Act. Bybee concludes that the President has the power to consult with outside advisers, and that the Federal Advisory Committee Act unconstitutionally infringes upon that power.