Liberals can thank a Kennedy-hating law pushed by LBJ for the limits on presidential powers to hire familial relations. Liberals can also thank the Clintons for making White House staff exempt from that law.
The basic upshot of the law, passed in 1967 under the direction of LBJ, was this: if a Kennedy retakes the White House, they can employ all their family in the White House, but not outside the White House in any agency of the executive branch. In other words, you can have the White House, but not the Justice Department too. Who affirmed this standard? The D.C. Circuit in 1993. On whose behalf? The Clintons.
On January 25, 1993, President Clinton established the President’s Task Force on National Health Care Reform. The President appointed his wife, Hillary Rodham Clinton, as the chairman of the Task Force. The Task Force directly advised the President, held public hearings, and met in private with cabinet staff to formulate a health care plan — Hillarycare.
Hillary, shock shock, wanted to keep the records of the Task Force secret. A variety of doctor groups sued to disclose them. In its defense in the case, the Clinton administration insisted the Task Force was exempt from publicly disclosing its records because all of its members–including Mrs. Clinton–were “government officers and employees” engaged in certain acts of privacy-protected policy. The doctor groups opposed that designation of Hillary as an “employee” on grounds the Kennedy-hating LBJ statute of 1967 statutorily barred her from appointment as an officer, colloquially known as the Anti-Nepotism Act. See 5 U.S.C. § 3110.
The D.C. Circuit ultimately concluded open government laws did not apply to Hillary’s actions for the Task Force. It only could conclude that by holding that Hillary was an officer or employee of the White House. It could only hold that by concluding the anti-nepotism law did not forbid such an appointment. (AAPS v. Clinton, 997 F.2d 898 (D.C. Cir. 1993)).
Based on that precedent, here are the three reasons Trump can appoint Kushner, or any other relative, to a position in the White House staff.
The anti-Kennedy anti-nepotism law provides that the president cannot appoint a “relative” to a “civilian position” in “an executive agency” that the president “exercises jurisdiction over.” (5 U.S.C. 3110). This allows for three exceptions: first, White House staff is exempt from such laws by express language in the Presidential White House Staff employment authorization (3 U.S.C 105); second, the White House is not an “executive agency” covered by the law; third, an unpaid person, or a person not given a “civilian position” with merit service protection, is not covered by the anti-nepotism law.
The first exception derives from the Presidential employment statute the D.C. Circuit cited: “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.” (3 USC 105). Hence, Trump can appoint Kushner, Ivanka, Donald Jr., Eric, Tiffany, or anyone other relative to the White House itself. The law even provides for a First Spouse budget and notes her role in assisting the President perform his duties, confirming its intentions to exempt White House members from the anti-nepotism laws, as the D.C. Circuit also concluded.
Second, even if courts ignored section 105, Congress only applied the “anti-nepotism” law to an appointment to a “civilian position” in a separate “agency” of the “executive branch.” That does not include the White House, which is not an “agency” of the executive branch. By contrast, Congress applied the anti-nepotism (anti-Kennedy) law to any “office, agency, or other establishment in the legislative branch,” and any “office, agency, or other establishment in the judicial branch,” and the entire “government of the District of Columbia.” Congress chose for the law to cover every aspect of every branch of government with one exception: the “office” and any “other establishment” of the executive branch. This is not new. The Supreme Court ruled the White House is not an “agency” of the executive branch or the government, period. (Franklin v. Massachusetts 112 S.Ct. 2767, 2775.) The Federal Circuits concurred, holding White House staff are not subject to either the Administrative Procedures Act or the Freedom of Information Act. (Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991)). These express choices of language — called “the canon of statutory construction” by the courts — reinforced the D.C. Circuit’s interpretation: the anti-nepotism law does not apply to White House staff, exempting the functioning of the White House itself from the anti-Kennedy, anti-nepotism statute’s proscriptions.
Third, unpaid staff, or those without a position in the civilian service, are also likely excluded from the law. Even if the Presidential employment authorization for White House staff was ignored, and the White House itself suddenly defined as an “agency,” the law itself suggests unpaid staff, and those without civilian service protection, would not be covered, as the D.C. Circuit itself suggested. (AAPS v. Clinton, 997 F.2d 898 (D.C. Cir. 1993)).
Kushner’s appointment is completely lawful. Maybe Ivanka will be next.
Robert Barnes is a California -based attorney. He is also a contributor to LawNewz.com.
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This is an opinion piece. The views expressed in this article are those of just the author.