Friday, January 13, 2017

All in the Family, Meet The West Wing

As Bill Clinton Showed Us, Presidents Can Appoint Family Members as Advisors

A number of media reports -- as well as several members of the House Judiciary Committee in a letter to the Attorney General -- have claimed that the President-Elect's appointment of his son-in-law Jared Kushner as a senior advisor constitutes unlawful nepotism under federal law. It does not, just like Bill Clinton's 1993 appointment of Hillary Clinton to chair his Task Force on National Health Care Reform did not.

No one questions that the President has broad latitude to appoint staff to support him in his role. The Constitution reflects that understanding in Article II, which delineates the Executive Departments (such as the Departments of State, Treasury, and Defense -- what we call the cabinet posts) and the President's appointment power. As the federal government has grown so too has the President's need for support, and in 1939 the Executive Office of the President (EOP) was created. As stated on the White House website, "[t]he EOP has responsibility for tasks ranging from communicating the President’s message to the American people to promoting our trade interests abroad. Overseen by the White House Chief of Staff, the EOP has traditionally been home to many of the President’s closest advisors."

So why all the fuss? There is a federal anti-nepotism statute that appears at first glance to apply. The law, which was adopted in 1967 in response to Robert Kennedy's appointment as attorney general in his brother's administration, bars Presidents from appointing relatives to cabinet positions and certain -- but not all -- government positions. 

First glance aside, this statute does not apply to the EOP or White House Office. The law covers the Executive Departments -- meaning cabinet positions; positions in the legislative and judicial branches; the government of the District of Columbia; Government corporations; and independent establishments. Since the EOP and White House Office are not covered, the statute's restrictions simply do not apply. A 1993 appellate court decision addressing Hillary Clinton's role with the Task Force on National Health Care Reform supports this conclusion. As the court noted, "we doubt that Congress intended to include the White House or the Executive Office of the President" under the 1967 law. Even if it did apply, it would not block the appointment but only the advisor's compensation. According to reports, Kushner will not be paid, so there would be no issue if it did apply.

In addition to the 1967 statute, there is a 1978 statute directly on point that many of the media reports neglect to mention. Why is that? Because there would be no "story" -- the later statute provides the President with essentially unfettered discretion in employing advisors and assistants. In fact, it expressly carves out the "White House Office" from any potentially applicable restrictions in the 1967 statute or any other law. Under the 1978 law, "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 the employment or compensation of persons in the Government service." 

These federal statutes thus combine to make Kushner's appointment to this role a non-issue, despite claims to the contrary. Appointment to a cabinet position would raise an issue under the 1967 statute, but it also would provoke a constitutional dispute over whether or not that law violates the separation of powers by providing Congress with the ability to dictate the President's appointments.

By the way, appointing family members is as old as the Republic itself. John Adams, our Second President, appointed his son John Quincy Adams Minister to Prussia.

On a final note, there is a split of authority over how to spell advisor, and both spellings -- advisor and adviser -- are considered correct.


  1. Grateful for The Conversational Lawyer's objective voice of reason and analysis, once again. Thank you, as well, for a historical context. Your insight and honesty will be valued highly and anticipated over the four years ahead.

  2. Is this coming from FeedBlitz or Buzzfeed? Just kidding. The contextual and legal analysis is on point, as always. It is reassuring that the President-Elect is in the clear on this issue.

  3. Thanks for the great historical analysis, Eric. Has there been any court decision that the 1967 statute does not apply to the White House, or that the White House is not an "Executive Department?"

    1. Thanks Richard. I think the law is quite clear that the "White House" -- which I construe to cover the President, White House Office, and the EOP -- is not an "Executive Department." 5 U.S.C. § 101 lists the Executive Departments and does not include anything but the cabinet level departments. In addition, the Constitution in Article II makes it quite clear that the President and the Executive Departments are separate and distinct: “The President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." To similar effect is this language, also in Article II: "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

      In a 1992 decision, Franklin v. Massachusetts, the Supreme Court held that it would not -- "[o]ut of respect for the separation of powers and the unique constitutional position of the President" -- find the President to be an agency under the Administrative Procedure Act absent explicit direction from Congress. This decision and its rationale was cited by the DC Circuit in the 1993 Clinton case I quoted in my post, which I think is a correct analysis of the issue, especially when viewed along with the 1978 statute. In the words of the DC Circuit, "[s]o, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant." As my post telegraphs, I would delete the word perhaps.

      Only time will tell whether the Kushner appointment is a smart idea. My point is that the President-Elect gets to make it.

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