In the 1988 case of Public Citizen v. United States Department of Justice, the Supreme Court ruled that an advisory committee made up of members from the American Bar Association (ABA) was not subject to requirements under the Federal Advisory Committee Act (FACA). The ABA's Standing Committee on Federal Judiciary had been providing non-binding advice to the President regarding potential nominees for federal judgeships. Public Citizen, a consumer advocacy group, argued that this constituted an advisory committee as defined by FACA and thus should be required to disclose its meetings and records. However, in a 5-4 decision led by Justice William Rehnquist, it was determined that applying FACA in such a manner would infringe upon Presidential powers granted by Article II of Constitution which includes appointment power. Therefore, since these consultations were part of his duties as president and did not involve any formal authority or role for ABA within government operations or policy making process itself; they were exempted from being considered under purview of FACA.

In the dissenting opinion for Public Citizen v. United States Department of Justice, Justices Rehnquist, White and Scalia argued that the majority had misinterpreted both the Federal Advisory Committee Act (FACA) and the Constitution's Appointments Clause. They contended that FACA did not apply to groups like the American Bar Association (ABA), which was providing advice to a government agency but was not established by it or under its control. The ABA’s Standing Committee on Federal Judiciary merely provided recommendations about potential judicial nominees; they were neither appointed nor paid by federal authorities, thus should be exempt from FACA requirements according to these justices. Furthermore, they disagreed with applying constitutional separation-of-powers principles in this case as there wasn't any intrusion into executive functions since no formal power or authority was given to an outside body.