Nepotism and the Cabinet

by Gerard Magliocca · June 4, 2012

Title 5, §3110 of the United States Code states:

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.

This anti-corruption statute is reasonable enough, but the plain language also applies to the President. In other words, John F. Kennedy could not have appointed Robert Kennedy as Attorney General if this provision had existed in 1961. (The statute was enacted in 1967, probably in response to RFK’s nomination.)

I have serious doubts that Section 3110 is constitutional as applied to a President. First, as far as I can tell, this is the only statutory limit on the President’s authority to choose his political appointees. Separation-of-powers would suggest that Congress cannot intrude so bluntly into his discretion to choose close advisors. Second, if the position is subject to Senate confirmation, that represents an adequate check on executive excess. Third, presidents would take a significant political hit if they abused their appointment authority to help out friends and relatives. (BTW, what does relative mean? Any relation? Only a spouse, child, or sibling?)

Bart Torvik says:

June 4, 2012 at 10:32 pm

5 U.S.C. § 3110(a)(3):

“relative” means, with respect to a public official, an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.
William Baude says:

June 5, 2012 at 1:13 am

For a textualist analysis consistent with this view, you might check out this article by Hanah Volokh. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1016220
Marty Lederman says:

June 5, 2012 at 2:28 am

“this is the only statutory limit on the President’s authority to choose his political appointees”?

Hardly. There are hundreds of such statutory limits, part of a deep and consistent historical practice. More than ten pages in Justice Brandeis’s dissent in Myers v. U.S., for instance, are devoted to recounting the “mass of legislation restricting the power of nomination” in the first 130+ years of the Constitution, 272 U.S. at 265-75 — a legislative power the Court majority acknowledged, id. at 128-29.

This extensive historical practice doesn’t, however, answer the question whether section 3110 in particular might be unconstitutional as applied to certain offices. The canonical Executive branch view on how to assess that question was offered by AG Akerman in 1871, namely, that Congress’s power to set qualifications “is limited by the necessity of leaving scope for the judgment and will of the person or body in whom the Constitution vests the power of appointment.” Congress may not dictate qualifications “unattainable by a sufficient number to afford ample room for choice.” Civil Service Commission, 13 Op. Att’y Gen. 516, 520-21, 525 (1871). See also 20 Op. O.L.C. 279 (1996) (explaining that “there must be some constitutionally prescribed balance” and that this “balance may shift depending on the nature of the office in question”).
Gerard Magliocca says:

June 5, 2012 at 8:20 am

Marty,

Is there another example of a statutory limit on the President’s discretion to pick a member of the Cabinet? (That’s what I meant to discuss.) Civil service statutes obviously limit the President’s ability to hire and fire, but (The Tenure of Office Act aside) I don’t know of any beyond the anti-nepotism law that might apply to the Cabinet.
Shane Smith says:

June 5, 2012 at 8:29 am

Very great articles about nepotism and cabinet. I like your blog!
Joe says:

June 5, 2012 at 9:38 am

Learning in the Law: Act of Sept. 24, 1789, c. 20, § 35, 1 Stat. 73, 92, Attorney General and district attorneys; Act of Mar. 26, 1804.
Gerard Magliocca says:

June 5, 2012 at 9:52 am

It would be hilarious if somebody filed suit claiming that some AG was not “learned in the law” because his or her credentials were too thin.
Marty Lederman says:

June 5, 2012 at 9:55 am

Gerard: There is no strict constitutional demarcation for these purposes between offices that are deemed “Cabinet-level” and those that aren’t. (As “Joe” notes, the first Congress precluded nonlawyers from being appointed AG.)

Hanah Volokh (see Will’s link) has argued for a distinction between qualifications imposed upon principal and inferior officers — but none of the three branches has ever accepted such a distinction.

In the 1996 Trade Rep Opinion, OLC did argue that with respect to a position “especially close to the President,” “entail[ing] broad responsibility for advising the President and for making policy, the President must have expansive authority to choose his aides,” and thus the legislative qualifications power is somewhat more constrained in such cases. The anti-nepotism rule, however, surely leaves the President with “expansive authority” to appoint, excluding as it does only a handful of people, not even a whole category of the most well-qualified, as in the Barshefsky example. FWIW.
Joe says:

June 5, 2012 at 10:37 am

Filing suit is not the only way these things are enforced.

The distinction noted by #8 did come to mind when I looked at the Brandeis dissent. He lists quite a few things but a quick perusal only popped up that one for a Cabinet level appointee. This seems suggestive but how much is unclear.

I can imagine some other regulation (such as requiring Secretaries of State to be fluent in the lingua franca of the day) but the attorney general provision looks to be a special case in practice.