Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office
Background
- The Office of Legal Counsel was asked whether 5 U.S.C. § 3110 (the federal anti‑nepotism statute) prohibits the President from appointing his son‑in‑law to a White House Office position.
- Section 3110 bars a "public official" (including the President) from appointing a relative "to a civilian position in the agency . . . over which [the official] exercises jurisdiction or control."
- 3 U.S.C. § 105(a) authorizes the President 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," subject to pay‑level limits in § 105(a)(2).
- The OLC concludes § 105(a)’s "without regard to" language exempts White House Office appointments from § 3110’s bar, allowing relatives to be appointed under § 105(a).
- The D.C. Circuit’s decision in Haddon v. Walters supports that result by treating the White House Office/Executive Residence as not an "Executive agency" under the Title 5 definition for employment/compensation statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3110 forbids the President from appointing a relative to the White House Office | § 3110 applies to any appointment by the President to positions in agencies he controls, including White House staff | § 105(a) gives the President authority to appoint White House Office employees "without regard" to other employment laws, so § 3110 is displaced for § 105(a) appointments | § 105(a) exempts White House Office appointments from § 3110; appointment not barred |
| Whether the White House Office is an "Executive agency" under Title 5 for § 3110 purposes | White House Office should be covered as part of the executive branch entities subject to Title 5 employment rules | Haddon and title 3 special hiring authorities show the White House Office is not an "Executive agency" for employment/compensation rules | Court of Appeals (Haddon) treats Executive Residence/analogous White House entities as not "Executive agencies" for employment statutes; OLC adopts that view for this context |
| Whether legislative history or prior OLC opinions require reading § 3110 to override § 105(a) | Earlier OLC memos and some congressional comments suggest Congress intended broad nepotism coverage, including the White House | § 105(a) was enacted later and its plain "without regard" text and committee reports show intent to give the President discretion for White House hiring | OLC gives greater weight to § 105(a)’s text and later enactment; prior OLC opinions are revisited and reconsidered |
| Whether constitutional or policy concerns forbid allowing relatives as formal White House employees | Applying § 3110 preserves anti‑nepotism norms and avoids ethical risks | The President can consult relatives as private citizens; if formally appointed they become subject to conflict‑of‑interest laws; § 105(a) accommodates both presidential staffing needs and legal restrictions | OLC: allowing appointment is legally permissible under § 105(a); other ethics/conflict statutes still apply to appointed relatives |
Key Cases Cited
- Haddon v. Walters, 43 F.3d 1488 (D.C. Cir.) (White House Executive Residence not an "Executive agency" under Title 5 for employment statutes)
- Myers v. United States, 272 U.S. 52 (1926) (President exercises jurisdiction and control over Executive Branch)
- Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (discussing Title 5 coverage and White House employment issues)
- American Hosp. Ass'n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) (interpreting "without regard to" statutory language as broadly displacing other laws)