Is the anti-nepotism law unconstitutional?

[Northern_Piper]

Rumours are floating that Trump wants to have his son-in-law, Jared Kushner, appointed to some role in the White House.

Against that is the anti-nepotism law that was passed after JFK appointed his brother Bobby as Attorney General. 5 USC 3110 reads:

(b) 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. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

The definitions section (5 USC 3110(a), linked to above) makes it clear that “public official” includes the President, and “relative” includes “son-in-law.”

So that would seem to put paid to Trump’s ability to appoint Kushner.

But…

Is the provision constitutional, under the separation of powers? Can Congress limit the President’s power to appoint people he wants as close advisors?

We know that Congress can’t limit the President’s power to fire people from the executive branch. The Supreme Court decided that nearly a century ago, in Myers v. United States (1926). The Court held that a statute that restricted the President’s ability to dismiss members of the federal service, such as a postmaster, was unconstitutional, because the statute violated the separation of powers. In giving the decision of the Court, Chief Justice Taft commented that the Tenure of Offices Act, which had been at the heart of the Johnson impeachment, was similarly unconstitutional (although that act had been repealed by the time of Myers).

But the question is, doesn’t that same principle apply to the President’s choice of members to serve in the executive branch, particularly the President’s close advisors? How can Congress, consistently with the separation of powers, prohibit the President from choosing his own advisors? Advice and consent of the Senate in appointing them, sure, but how can Congress go further and tell the President that there are certain people he simply cannot appoint as an advisor?

By way of context, here’s a very interesting quote from the then Governor of Connecticut, speaking to JFK:

“I have now watched you Kennedy brothers for five solid years,” Connecticut Governor Abraham Ribicoff told the president-elect, “and I notice that every time you face a new crisis, you automatically turn to Bobby. You’re out of the same womb. There’s empathy. You understand one another. You’re not going to be able to be president without using Bobby all the time.”

If JFK felt that RFK was the person who best could help him in a crisis, shouldn’t that be his choice, as the head of the Executive Branch? And the same for any other President, who trusts and relies on a particular family member? How can Congress prohibit it, under the separation of powers? Subject always to the “advise and consent” power of the Senate, of course.

For more detail, here’s the article that the quote came from: The Bitter Feud Behind the Law That Could Keep Jared Kushner Out of the White House

[PatrickLondon]

The son-in-law also rises, eh?

[Buck_Godot]

Whether or not it unconstitutional, I doubt that Trump will go through with a constitutional challenge. The optics of starting your adminstration with a constitutional crisis over trying to get your son-in-law a job is absurdly bad.

[Alessan]

Because if there’s one thing Trump cares about, it’s optics.

[Dewey_Finn]

I don’t know about whether the law is unconstitutional, but Clause C says. “An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.”

So could Jared Kushner serve in an unpaid position without violating the law?

[Northern_Piper]

I’ve seen that floated as well, but the starting point has to be the prohibition on appointment. If the President cannot lawfully appoint him, wouldn’t that make all Kushner’s actions illegal, because he has not been appointed lawfully to the office? That strikes me as smite serious issue than whether he gets paid.

[John_Mace]

A lot of these posts are going to need Congressional approval, so law or no law, the president can’t just appoint anyone he wants to any post.

[Northern_Piper]

sure, that’s advise and consent. But this law tells the President that he can’t even suggest certain individuals for the office.

[ganthet]

@Northern_Piper

I’ve seen that floated as well, but the starting point has to be the prohibition on appointment. If the President cannot lawfully appoint him, wouldn’t that make all Kushner’s actions illegal, because he has not been appointed lawfully to the office? That strikes me as smite serious issue than whether he gets paid.

If Kushner is just an advisor along the lines of Bannon, then he wouldn’t be making any official actions and his power would just be based on influence with Trump or any other official that Trump directs to work with Kushner. But that would still leave the problem of how to grant a top secret/SCI clearance to someone in a statutorily prohibited position.

[John_Mace]

@Northern_Piper

sure, that’s advise and consent. But this law tells the President that he can’t even suggest certain individuals for the office.

The law is advice: Don’t do it! It doesn’t prevent the president from nominating someone. What is Congress going to do, arrest him?

[Sage_Rat]

I feel like this is a law that strongly needed to define the word “relative”. I would venture to guess that most people on the board are my 1000th cousin or less.

[Chronos]

I feel like this is a law that strongly needed to define the word “relative”.

It did. See the OP’s link.

[Sage_Rat]

@Chronos

It did. See the OP’s link.

Pff links. In my day, we quoted public domain content!

Damn kids. Get off my lawn!

:o

[running_coach]

@Sage_Rat

Pff links. In my day, we quoted public domain content!

Damn kids. Get off my lawn!

:o

It’s not your lawn, it’s everyone’s!

[Northern_Piper]

@ganthet

If Kushner is just an advisor along the lines of Bannon, then he wouldn’t be making any official actions and his power would just be based on influence with Trump or any other official that Trump directs to work with Kushner. But that would still leave the problem of how to grant a top secret/SCI clearance to someone in a statutorily prohibited position.

That’s a fair question, but to explore the hypothetical, let’s suppose that President Trump wants to nominates Kushner to be Secretary of Housing and Urban Development - Kushner knows about real estate, amiright? Perfect!

And as a Cabinet secretary, Kushner has to be able to give directions to the Department, acting under federal statutes, so even if he doesn’t take a salary, does he have the legal authority, if the President is barred by law from appointing him?

[Northern_Piper]

@Sage_Rat

Pff links. In my day, we quoted public domain content!

Damn kids. Get off my lawn!

:o

Links are left as an exercise to the reader. Gotta keep those fingers limber, grandad!

[cochrane]

I am not a Constitutional scholar by any means, but it was signed into law by President Johnson. It seems like it passed muster. And as far as I know, it hasn’t been challenged in the courts, so there would be no reason for the Supreme Court to step in.

Of course, keep in mind I am pulling this somewhere where the sun doesn’t shine. A more learned legal expert may be along with a better informed opinion.

[Bricker]

@cochrane

I am not a Constitutional scholar by any means, but it was signed into law by President Johnson. It seems like it passed muster. And as far as I know, it hasn’t been challenged in the courts, so there would be no reason for the Supreme Court to step in.

Of course, keep in mind I am pulling this somewhere where the sun doesn’t shine. A more learned legal expert may be along with a better informed opinion.

A law passed by Congress and signed into law by the President enjoys a strong presumption of constitutionality.

If Trump nominated someone and the Senate confirmed that person in violation of the law, it seems to me that the first official action by the office-holder would give rise to standing to challenge the appointment by anyone affected by the action.

[UDS]

@Dewey_Finn

I don’t know about whether the law is unconstitutional, but Clause C says. “An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.”

So could Jared Kushner serve in an unpaid position without violating the law?

Wouldn’t seem so, from the plain words of the statute. The lack of entitlement to pay is a consequence of the violation of the section, not a way to avoid violating it.

This is a bit like arguing that, if you serve the prison sentence for murder, that means the killing wasn’t unlawful. No, you can’t.

[cochrane]

@Sage_Rat

I feel like this is a law that strongly needed to define the word “relative”. I would venture to guess that most people on the board are my 1000th cousin or less.

Sage Rat, I am your father’s brother’s nephew’s cousin’s former roommate.