Gavin Howe
The US has a long history of presidential nepotism, with at least 11 presidents appointing family members to executive branch positions. In 2017, Donald Trump appointed his son-in-law, Jared Kushner, as a senior advisor, causing controversy and raising questions about the legality of such an appointment. While there are laws barring nepotism in government hiring, the White House is not considered an agency, and the president has an unusual degree of freedom in choosing his personal staff. This interpretation of the rules has been criticised, but no legal action has been taken.
| Characteristics | Values |
|---|---|
| Can the US President hire his son-in-law? | Yes, but it depends on the role and the interpretation of anti-nepotism laws. |
| Anti-nepotism law | Under 5 USC. 3110, no federal official, including the President, may appoint a relative to a civilian position in the agency they serve. |
| Interpretations of the law | Daniel Koffsky of the Department of Justice interprets the law as not applying to the President's office, as it is not an executive agency. |
| Historical precedent | John Adams was the first President to appoint family members to executive branch positions. Other Presidents who have hired family members include Zachary Taylor, Ulysses S. Grant, Woodrow Wilson, Franklin Roosevelt, and Dwight Eisenhower. |
| Criticism | Critics argue that hiring family members in advisory roles could turn the executive branch into a family business. |
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What You'll Learn
The Federal Anti-Nepotism Statute
> an officer (including the President and a Member of Congress), a member of the uniformed service, an employee and any other individual, in whom is vested the authority by law, rule, or regulation, or to whom the authority has been delegated, to appoint, employ, promote, or advance individuals, or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency.
The statute further defines what constitutes a prohibited action by a public official:
> A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.
The definition of "relative" in the statute includes a son-in-law. However, there is some ambiguity regarding the applicability of the statute to the president's appointment of White House staff. In 1978, Congress passed HR 11003, which was signed into law by President Jimmy Carter. This law states that "the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating."
In 1993, a D.C. Circuit Court opinion mentioned that the federal anti-nepotism statute does not appear to cover staff in the White House or the Executive Office of the President. Judge Laurence Silberman wrote:
> So, for example, a president would be barred from appointing his brother as attorney general, but perhaps not as a White House special assistant.
There is disagreement in the legal community about whether this statement is legally binding, as it was not central to the case's holding. Additionally, ethics and legal experts have argued that excluding White House jobs from the anti-nepotism statute undermines public confidence in the government and the morale of public employees.
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The President's powers
The President of the United States has the power to appoint his senior advisers and members of his White House staff. This power has been used by presidents to hire their family members and relatives, including sons-in-law, as advisers and members of their administration. While there are federal anti-nepotism laws in place, these do not apply to the president's office, as it is not considered an agency.
The powers of the president in this regard have been a matter of debate and controversy, with critics pointing to the 1967 Federal Anti-Nepotism Statute, which prevents an executive agency official from appointing relatives, including sons-in-law, to positions within their agency. However, legal experts have argued that this statute does not apply to the president's appointment powers, as the White House is not an agency, and the president has broad leeway in filling their staff. This interpretation has been supported by the Justice Department's Office of Legal Counsel, allowing presidents such as Donald Trump to hire their son-in-law as a senior adviser.
The debate surrounding the president's powers to hire family members highlights the tension between the need for qualified advisers and the potential for nepotism in government hiring. While critics argue that the president's powers enable him to turn the executive branch into a family business, supporters contend that the president has the authority to choose his personal staff, granting him significant freedom in staffing decisions. Ultimately, the president's powers in this area remain a contentious issue, with legal interpretations allowing for the appointment of family members to influential positions within the White House.
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Historical precedent
The debate surrounding presidential nepotism is not a new phenomenon and dates back to the Founders' time. John Adams was the first president to appoint family members to executive branch positions, with his son, John Quincy Adams, serving as the US Secretary of State. Other presidents, including James Madison, James Monroe, Andrew Jackson, John Tyler, and James Buchanan, retained relatives at the White House in secretarial roles. Zachary Taylor kept his brother and son-in-law as unofficial presidential advisers, while Ulysses S. Grant had many direct family members on the government payroll or at the White House.
Woodrow Wilson, Franklin Roosevelt, and Dwight Eisenhower also had family members as secretaries or aides. John F. Kennedy appointed his brother-in-law, Sargent Shriver, as the first head of the Peace Corps. In the 1990s, President Bill Clinton faced a similar debate when he asked his wife, Hillary Clinton, to lead a health-care task force that held closed-door meetings. Hillary Clinton's appointment is the only instance of a president appointing a family member to a position in the executive branch since the passage of the anti-nepotism statute.
In 2017, President Donald Trump appointed his son-in-law, Jared Kushner, as a senior adviser. This decision raised questions about the rules barring nepotism in government hiring. The Justice Department's Office of Legal Counsel released an opinion supporting Trump's decision, citing the president's broad leeway in filling their White House teams. Daniel Koffsky, a deputy assistant attorney general, argued that the anti-nepotism statute did not apply to the president's senior-most aides. He interpreted the rules to mean that the White House is not an agency, and therefore, rules barring nepotism in executive agencies do not apply.
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Legal loopholes
The US has a federal anti-nepotism statute, which explicitly covers the President of the United States. The statute prohibits government employees, including the President, from hiring close family members, including a son-in-law, in any agency in which the person exerts control or influence. However, there are some legal loopholes that can be exploited to circumvent this statute.
Firstly, in 1978, Congress passed HR 11003, which was signed into law by President Jimmy Carter. This law states that "the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating". This means that the President has significant freedom in choosing their personal staff, and can appoint individuals without considering other legal provisions that regulate hiring in government. This interpretation of the law suggests that rules barring nepotism do not apply to the White House, as it is not considered an agency, but rather the office of the President.
Additionally, there is a question of whether the anti-nepotism statute applies to the President's authority to appoint members of the White House staff. Some legal experts argue that the statute only applies to executive agencies, and the President's office does not fall under this category. This interpretation gives the President broad discretion in hiring family members as White House staff, as long as they are not appointed to permanent or temporary positions in an executive agency.
Furthermore, it has been argued that the anti-nepotism statute does not apply to the President's appointment powers. Gerard Magliocca, a law professor from Indiana University, asserted that the statute is the only statutory limit on the President's authority to choose political appointees, and separation-of-powers principles suggest that Congress cannot intrude on this discretion. While this interpretation is arguable and may carry legal risks, it provides a potential justification for the President to hire family members.
Another loophole is that the anti-nepotism statute does not prohibit the appointment of relatives to unofficial roles that are not compensated. This interpretation was considered during the Clinton administration when President Bill Clinton asked his wife, Hillary Clinton, to lead a health-care task force. As she was not officially employed or compensated by the government, there was no conflict with the statute.
In conclusion, while the federal anti-nepotism statute exists to prevent nepotism in government hiring, there are several legal loopholes that can be exploited to allow the US President to hire their son-in-law or other family members as part of their administration. These loopholes highlight the complexities and ambiguities in the interpretation of the law, and the extent of the President's appointment powers remains a subject of debate.
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Criticisms and concerns
The appointment of family members to White House staff has been a concern since the founding of the United States. John Adams was the first president to appoint family members to executive branch positions, with his son, John Quincy Adams, becoming the first U.S. Secretary of State. Other presidents, including James Madison, James Monroe, Andrew Jackson, John Tyler, and James Buchanan, retained relatives at the White House in secretarial roles. Zachary Taylor kept his brother and son-in-law on the government payroll as unofficial advisers, and Ulysses S. Grant had many direct family members on the government payroll or at the White House.
In 1967, a federal anti-nepotism law was passed as part of a Postal Service reform, stating that an executive agency official cannot appoint relatives to "a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control." This law, known as Section 3110, was cited by critics when President Donald Trump appointed his son-in-law, Jared Kushner, as a senior adviser. However, the Justice Department's Office of Legal Counsel released an opinion supporting Trump's decision, arguing that the anti-nepotism statute is superseded by a different statute authorising the President to appoint top aides "without regard to any other provision of law regulating the employment or compensation of persons in the Government service." This interpretation has been criticised as giving the President broad leeway in hiring decisions and undermining other legal provisions that apply to hiring in government.
The interpretation of the anti-nepotism statute as not applying to the President's staff is based on the argument that the President's office is not an executive agency, and therefore the White House staff are not subject to the same hiring restrictions as other government agencies. However, this interpretation has been disputed, with some arguing that it is an overly broad reading of the rules and that the statute could be challenged in court. Critics of Trump's appointment of Kushner have also pointed to the high turnover rate in his administration and the potential for conflicts of interest when hiring close family members.
In addition to Kushner, other recent examples of potential nepotism include President Bill Clinton's appointment of his wife, Hillary Clinton, to lead a health-care task force in the 1990s, and the speculation that President Trump may have wanted his daughter Ivanka in an advisory position. While Ivanka Trump did not hold an official role, she was an unpaid employee of the White House, further blurring the lines between family and staff.
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Frequently asked questions
Yes, the US president can hire his son-in-law as a White House advisor. Federal anti-nepotism laws in the US prevent relatives from being appointed to government positions, but these laws do not apply to White House staff.
Yes, Donald Trump hired his son-in-law, Jared Kushner, as a senior advisor. John Adams was the first president to appoint family members to executive branch positions. He appointed his son, John Quincy Adams, to a position in the executive branch.
Yes, the US president can hire family members as White House staff. The White House is not considered an agency, so rules barring nepotism in an executive agency do not apply.
