Nepotism Laws: Do They Apply To The President?

The debate over whether nepotism laws apply to the president of the United States is not a new one. While federal anti-nepotism laws prohibit public officials from appointing relatives to government agencies, a legal grey area exists surrounding the White House, as it is not technically an agency. In 2017, the Department of Justice ruled that then-President Donald Trump's appointment of his son-in-law, Jared Kushner, as a senior adviser did not violate the anti-nepotism statute, citing the president's special hiring authority. This interpretation of the law has been contested, with critics arguing that it undermines the purpose of anti-nepotism legislation and sets a problematic precedent.

The Federal Anti-Nepotism Statute

The law was passed in response to a long history of presidential relatives serving in appointed and unofficial government positions. For example, President John F. Kennedy appointed his brother, Robert Kennedy, as Attorney General in 1961. This appointment was highly controversial as Robert lacked legal experience, and it was criticised as "the greatest example of nepotism this land has ever seen".

Despite the existence of the Federal Anti-Nepotism Statute, there is a legal grey area regarding the President's ability to appoint family members to their administration. This is because the White House is not considered an executive agency, and the President has powers directly vested by the Constitution's Appointments Clause. Some legal experts argue that the statute does not apply to the President's personal staff and that the President has broad discretion in appointing advisors.

In 2017, the Department of Justice concluded that President Donald Trump's appointment of his son-in-law, Jared Kushner, as a senior advisor did not violate the Federal Anti-Nepotism Statute. Kushner's role as an advisor was not considered a violation as he was not employed by a government agency and was not receiving compensation. However, this interpretation of the statute has been criticised, and legal experts remain divided on the applicability of the statute to the President's appointments.

The White House is not an agency

The debate over whether nepotism laws apply to the president is not new. Several presidents have appointed their relatives to key positions, including John Adams, who appointed his son, John Quincy Adams, as a diplomat and the United States minister to Prussia.

The Federal Anti-Nepotism Statute, also known as Section 3110, was passed in 1967 as part of a Postal Service reform law. This statute states 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."

However, the White House is not considered an agency, and the president has the power to appoint and fix the pay of employees in the White House Office without regard to other provisions of law regulating government employment or compensation. This is based on 3 US Code section 105(a), which states that the president is authorized to make such appointments to ensure assistance and services for himself.

In 2017, the Department of Justice (DOJ) ruled that the president could appoint family members to his or her personal White House staff, as the president's office is not an executive agency. This ruling allowed Jared Kushner, Donald Trump's son-in-law, to be appointed as a senior adviser to the president. The DOJ's interpretation of the law gives the president broad leeway in hiring decisions for their office.

While the White House is not subject to the same anti-nepotism laws as federal agencies, there are still ethical concerns. Critics argue that appointing family members to key positions creates a pattern of cronyism and undermines the democratic process.

The Appointments Clause

While the Appointments Clause generally prohibits nepotism by preventing the President from appointing family members to certain positions, there is a legal grey area. The White House is not regulated in the same way as other administrative agencies, and presidential advisers without explicit roles are not subject to the same legal restrictions as those with specific roles. This grey area has allowed some presidents to appoint family members to unofficial roles within the White House.

The President's special hiring authority

The anti-nepotism law, or Federal Anti-Nepotism Statute, was passed in 1967 as part of a Postal Service reform law. It states that an executive agency official cannot appoint relatives, including sons, daughters, and sons-in-law, to "a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control."

However, in 2017, the Department of Justice (DOJ) ruled that the President could appoint family members to their personal White House staff. This was based on the interpretation that the President's office is not an executive agency, and therefore the President can hire family members as they are not bound by the anti-nepotism law. This interpretation was first considered in a 1972 memo during Richard Nixon's presidency but no final recommendation was made.

The DOJ's 2017 ruling stated that "the President’s special hiring authority in 3 U.S.C. § 105(a) permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid." This ruling allowed Jared Kushner, son-in-law of President Donald Trump, to work as an unpaid adviser in the Trump administration. Similarly, Hillary Clinton served as an adviser to President Bill Clinton, and Ivanka Trump is an unpaid employee of the White House.

While the President's special hiring authority allows them to appoint family members to their administration, critics argue that it sets a poor precedent and is a form of cronyism.

The anti-nepotism law's limitations

The anti-nepotism laws, as outlined by the Federal Anti-Nepotism Statute, or Section 3110, were passed as part of a Postal Service reform law in 1967. The law states that a public official may not "appoint, employ, promote, advance, or advocate" for a relative in their agency or one that they have control over. However, this law has limitations when it comes to the President of the United States.

Firstly, the anti-nepotism laws do not apply to the President's personal staff or advisers within the White House. The White House is not considered an executive agency, and therefore, the President can hire family members as staff or advisers without violating the Federal Anti-Nepotism Statute. This interpretation of the law gives the President broad leeway in hiring decisions for their personal staff.

Secondly, the anti-nepotism laws do not apply to relatives of the President who are not compensated for their work. For example, Jared Kushner, President Donald Trump's son-in-law, was appointed as an unpaid adviser, which was deemed not to violate federal anti-nepotism laws. It is important to note that while Kushner is not paid a salary, he is still subject to conflict of interest laws.

Thirdly, the anti-nepotism laws do not prohibit a Member of Congress from employing two individuals who are related to each other but not to the Member. Additionally, there is no restriction on campaign workers; they are not covered by the anti-nepotism laws.

Finally, the anti-nepotism laws only apply to specific relatives, as outlined in the statute. The law defines a relative as "an individual who is related to the public official as a father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, or half-sister." Any individuals outside of this definition are not subject to the anti-nepotism laws.

While the anti-nepotism laws provide important restrictions on nepotism in government, these limitations highlight areas where the laws may not be as effective in preventing nepotism, especially when it comes to the President and their appointments.

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