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Nepotism and the Cabinet

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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9 Responses

  1. Bart Torvik says:

    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.

  2. 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

  3. Marty Lederman says:

    “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”).

  4. Gerard Magliocca says:

    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.

  5. Shane Smith says:

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

  6. Joe says:

    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.

  7. Gerard Magliocca says:

    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.

  8. Marty Lederman says:

    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.

  9. Joe says:

    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.

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