Anthony Kennedy

“ 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." ”

“ 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." ”

“ 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. ”

“ 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 of parts, mutually forming a check upon each other. ”

“ A few examples of true absurdity are given in the Holy Trinity decision cited by the Court, ante, at 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. ”

“ 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 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 commonsense meaning. ”

“ 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.
* 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) . ”

“ 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. ”

“ Reluctance to working with the basic meaning of words in a normal manner undermines the legal process. These cases demonstrate that reluctance of this sort leads instead to woolly judicial construction that mars the plain face of legislative enactments. ”

“ It remains one of the most vital functions of t is 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. ”

“ 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. ”

“ 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 464-465, n. 12 (citing cases) . All those points are true in the cases before us.↑ 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. ”

“ 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. ”