Amicus Brief of J. Gregory Sidak in Association of American Physicians & Surgeons v. Hillary Rodham Clinton

Abstract

This amicus brief addresses the question: Does the Recommendation Clause of the Constitution bar application of the Federal Advisory Committee Act to President Bill Clinton's Task Force on National Health Care Reform? The appellants assert that the Task Force consists "wholly of federal officers or employees," and that the Task Force is not an "advisory committee" because Ms. Hillary Rodham Clinton, while the only person arguably a private citizen on the Task Force, nonetheless should be deemed to be an officer or employee of the federal government.

This brief is an effort to supply the U.S. Court of Appeals for the D.C. Circuit with a fuller understanding of the original meaning of the Recommendation Clause than can be drawn from either the decision below or the brief of the Department of Justice. This provision in section 3 of Article II, heretofore virtually ignored by courts and constitutional litigants, is the basis for the district court's holding that applying the Federal Advisory Committee Act to certain meetings of the President's Task Force on National Health Care Reform would be unconstitutional. The same provision also drives the appellants' arguments that application of the Act to any meetings of the Task Force would be unconstitutional. Neither the district court nor the Department of Justice, however, has provided any analysis of the history, text, or structure of that provision. In 1989, I published what was evidently the first extended analysis of the Recommendation Clause. My research revealed that the original meaning of the Recommendation Clause does not support either the district court's holding on constitutional grounds or the Justice Department's arguments before the D.C. Circuit.

The Recommendation Clause does not shield the Task Force from the Federal Advisory Committee Act. The Task Force lacks the distinguishing features that motivated the Framers to vest plenary powers of recommendation in the unitary Executive. If the Task Force were to exercise the President's plenary powers of recommendation, it would undermine the separation of powers by diminishing the political accountability of both the executive and legislative branches.

The interpretations of the Recommendation Clause upon which the district court and the Department of Justice respectively rely are inconsistent with the history and text of the Clause. Nor is either interpretation plausible on structural grounds, for each would undermine the unitary Executive by diffusing accountability for presidential recommendations to Congress. Although the President may enlist private citizens and employees of Congress into the process of making recommendations for legislation, he may not, given legislation to the contrary, invoke the plenary powers associated with the Recommendation Clause to envelop that undertaking in a shroud of secrecy. To do so would violate the principle of the separation of powers by pluralizing the unitary Executive. The result being proposed in this case would doubly insult the Framers' design: Not only would we gravitate toward the parliamentary model of government that the Framers so decisively rejected, but we would do so in a manner that would diminish individual liberty by blurring the line that separates the public and private spheres.

The judgment below should be affirmed to the extent that it holds that the preliminary injunction may issue requiring the President's Health Care Task Force to comply in all respects with the Federal Advisory Committee Act. The judgment below should be reversed to the extent that it holds that issuance of such a preliminary injunction against the Task Force would impermissibly encroach upon the President's duties and prerogatives under the Recommendation Clause and thus violate the principle of the separation of powers.