Communication Unrelated to the Framing of a Particular Decision
Permissive Consultation: Provisions for communication are perhaps seen in their mildest form in the Foreign Agents Registration Act of 1938, which established the right, although clearly not the duty, of the Secretary of the Treasury and the Postmaster General to accede to the request of the Librarian of Congress that they provide the librarian with copies of foreign printed matter excluded from the United States under congressional statutes.[661]
Must Receive Advice: The 1938 Naval Reserve Act created a Naval Reserve Policy Board, at least half the members of which were to be naval reserve officers called to Board duty from inactive duty status, which was to be convened annually for the purpose of advising the Secretary of the Navy on the formulation of Naval Reserve Policies.[662] Here a definite obligation to communicate, and a special agency for communication are established, and the Secretary of the Navy is by inference required to receive proffered advice, although he is not obligated to act in conformance with it.
Must Confer or Consult: Dictionaries tend to regard the words “advice” and “consult” as synonyms. And it may be that the Congress tends to employ these terms interchangeably. Yet it is reasonable to suppose that the legislature does not regard the transmission of decisional premises as an invariable one-way process. If this be true, it is possible although not demonstrable that “advise” as employed in statutes connotes the offering of counsel or opinion, recommending as wise or prudent—the communications process flowing in one direction; and “consult” implies a two-way communication process, “talking over a situation or a subject with someone to decide points in doubt.”[663]
The Emergency Railroad Transportation Act of 1933 is infused with a quality of briskness which is absent from the statutes alluded to above. In this Act Congress created a co-ordinator of transportation and a number of regional railroad co-ordinating committees. It stipulated that the co-ordinator must “confer freely with the committees, and the committees, the carriers, the subsidiaries, and the Interstate Commerce Commission shall furnish him ... such information and reports as he may desire.”[664]
The Defense Production Act of 1950 required the President, in exercising the price and wage stabilization provisions of the Act, “so far as practicable, (to) advise and consult with, and establish and utilize the committees of, representatives of persons substantially affected by regulations or orders issued hereunder.”[665]
Must Consider: While not saying that proffered advice must be accepted, Congress indicated in a 1946 statute that the Civil Aeronautics Administrator was to hold himself open to influence. In drawing up his plan for the development of public airports in the United States, he was required as far as possible to consult and give consideration to the views and recommendations of the Civil Aeronautics Board, the States, the Territories, Puerto Rico, and their political subdivisions.[666] He also had to consult and consider to the extent feasible the views and recommendations of the Federal Communications Commission.
The Philippine War Damage Commission was created in 1946 and assigned the task of making compensation for war damage to private property in the Philippines. The Commission was required so far as practicable to give consideration to the recommendations of the Filipino Rehabilitation Commission created in an earlier act. But, said Congress, the Commission was not required to await, or be bound by such recommendations.[667]