WendyMcElroy.com

The statute (5 U.S.C. Section 3110) 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.” Kushner satisfies the statutory definition of a “relative.”

Passed in 1967 as part of the Federal Post Act, the statute is often viewed as a reaction to President John Kennedy appointing his brother Robert as Attorney General. Others claim it was primarily an attempt to clamp down on the common practice of officials hiring their wives and other relatives as staffers.

The prohibition was an attempt to ensure that federal hiring was based on merit but it also addressed purely practical considerations. For example, an official might find it difficult to reprimand or to fire a relative who was incompetent. And it is natural to give preferential treatment to those with whom a deeply personal relationship exists.

On the surface, the Kushner situation seems clear because the statute language is plain. Appointing a relative violates statute law. But at least three powerful objections have been raised and may result in Kushner joining the White House.

First, the nepotism limitation may be an unconstitutional violation of the Appointments Clause (Article II, Section 2, Clause 2). It provides, “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States...” The clause gives the president sole authority to nominate or appoint any candidate he wishes; the Senate has the ability to grant or withhold its consent only after the fact. Statute law cannot overrule the Constitution.

Second, there is debate on what is meant by the word “agency” with reference to advancing a relative “in or to a civilian position in the agency in which he [the President] is serving...” It is far from clear that the White House constitutes an agency under the statute, however. Under the Freedom of Information Act, for example, the White House Office of Administration is not considered to be an agency and is exempt.

A 1993 opinion from the D.C. Circuit provides another precedent for discarding the statute with regard to staff in the White House or in the Executive Office of the President. In that case, Judge Laurence Silberman wrote, "[F]or example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant....The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government. Thus, even if it would prevent the President from putting his spouse on the federal payroll, it does not preclude his spouse from aiding the President in the performance of his duties.” In other words, White House staffers may be exempt from the statute; even if they are not, then they may be exempt if they do not accept a federal pay check. From media indications, Kushner may be pursuing the latter strategy.

Third, Hillary Clinton provides a prominent precedent. In 1993, Bill Clinton appointed her as head of the Presidential Health Care Reform Task Force in order to forge a universal health policy that became known as Hillarycare. The position of official power was an unheard of for a presidential spouse.

Obama continued the Clinton pattern in forming the Childhood Obesity Task Force which exists to implement the “Let's Move” initiative. This was Michelle Obama's crusade with the most visible result being the 'healthy' school lunches that have been roundly criticized.

In the footsteps of Clinton and Obama, Trump wants to surround himself with family members whom he can trust, and he probably has the legal right to do so.
.
The surest brake upon nepotism may not be the law but public opinion. Appointing family members to political power seems to contradict Trump's much-touted mission of sweeping D.C. clean of an elite, insider culture. It also gives the appearance of a royal family. The public would be correct to pause and watch with suspicion.