Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office
Background
- The Office of Legal Counsel (OLC) was asked whether 5 U.S.C. § 3110 (the federal anti‑nepotism statute) bars the President from appointing a son‑in‑law to a White House Office position.
- Section 3110 forbids a public official from appointing a relative to a civilian position in the agency over which the official exercises jurisdiction; it expressly names the President and covers a son‑in‑law.
- 3 U.S.C. § 105(a) gives the President authority to appoint and fix pay of White House Office employees “without regard to any other provision of law regulating the employment or compensation of persons in the Government service,” subject only to pay‑level limits in § 105(a)(2).
- OLC concluded that § 105(a)’s “without regard to” language exempts White House Office appointments from § 3110.
- The D.C. Circuit’s decision in Haddon v. Walters (43 F.3d 1488) supports the result via a separate route: treating White House entities as outside the title 5 definition of “Executive agency” for employment/compensation statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3110 bars the President from appointing a relative to a White House Office position | § 3110 applies to the President and bans appointing relatives to positions under his control, including White House staff | § 105(a) authorizes presidential appointments to the White House Office “without regard to any other provision of law” and thus exempts such appointments from § 3110 | OLC: § 105(a) exempts White House Office appointments from § 3110; the anti‑nepotism bar does not prohibit the contemplated appointment |
| Whether the White House Office is an “Executive agency” within the meaning of title 5 and thus within § 3110’s scope | White House Office may fall within the statutory definitions covered by § 3110 | Haddon and title‑3 structure show White House Office positions are governed by title 3 hiring authorities, not title 5 agency rules | Consistent with Haddon, OLC treats the White House Office as outside the title 5 conception of “Executive agency” for employment/compensation purposes |
| Whether legislative history indicates Congress intended § 3110 to override presidential White House hiring authorities | Historical statements suggested broad application of § 3110, possibly including the White House | The later‑enacted, explicit § 105(a) hiring authority and the lack of clear congressional intent to override it support exemption | OLC finds the legislative record insufficient to defeat § 105(a)’s plain effect; § 105(a) controls |
| Whether constitutional or policy concerns require treating relatives as informal advisers instead of White House employees | Applying § 3110 could force the President to rely only on informal, uncompensated advice from relatives | The President may appoint relative as White House employee and, if so, the relative becomes subject to conflict‑of‑interest and other statutory restrictions | OLC: President may choose between informal private advice or formal White House appointment (with attendant restrictions); § 3110 does not preclude the latter |
Key Cases Cited
- Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam) (held Executive Residence/White House entities are not an “Executive agency” for title 5 employment/compensation purposes).
- Myers v. United States, 272 U.S. 52 (1926) (recognizing the President’s control over the Executive Branch).
- Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (discussed scope of White House employees under title 5 and related statutes).
- American Hosp. Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) (interpreting scope of “without regard” statutory exemptions).