The administration is behaving as though Su has been confirmed as labor secretary even though she hasn’t been — and can’t be, given bipartisan opposition.
Joe Biden’s nominee for secretary of labor is the current deputy secretary of labor, Julie Su. She has been serving as acting secretary since Marty Walsh left the job in March. The Senate is unlikely to confirm her because every Republican, Joe Manchin (D., W.Va.), most likely Krysten Sinema (I., Ariz.), and possibly a few other Democrats are opposed to her nomination. Rather than set up a vote that would fail, Senate Majority Leader Chuck Schumer hasn’t scheduled one.
So the Biden administration hatched a plan to make her secretary anyway: Just leave her be. The Vacancies Act, which governs all federal departments, says acting secretaries can serve only for 210 days, but the Biden administration is claiming that it made the appointment under a different law specific to the Department of Labor that has no time limit.
This move will most likely be challenged in court when Su’s 210 days are up, in early October. A business injured by a DOL regulation would likely argue that the regulation doesn’t count because the secretary isn’t legitimate. Something like that happened during the Trump administration, and federal courts ruled that acting officers in the Department of Homeland Security, including the secretary, were unlawful.
Rather than avoid that outcome and nominate someone the Senate will confirm, Biden is yet again demonstrating his contemptuous attitude toward the Constitution. His nominee is echoing that sentiment.
“I’m all in for doing it. I don’t have an intention of going anywhere,” Su said yesterday, quoted in the Messenger.
Vice President Kamala Harris has stopped calling Su “acting secretary,” even though that is what Su is. “I’ll call her Labor secretary. I’m not gonna say the word ‘acting,’” Harris said. “I’ve known her for many years and she is a true fighter for the working people and working families of America.”
There’s no loophole in the Constitution that says cabinet secretaries don’t need to be confirmed by the Senate if the vice president has known them for a long time. The administration is behaving as though Su has been confirmed even though she hasn’t been.
Representatives Virginia Foxx (R., N.C.) and Kevin Kiley (R., Calif.) have introduced legislation to make it perfectly clear that there’s no secret loophole in federal statutes that allows unconfirmed acting secretaries to serve indefinitely. Foxx, as chairwoman of the House Education and Workforce Committee, and Senator Bill Cassidy (R., La.), as ranking member of the Senate Health, Education, Labor, and Pensions Committee, have been conducting oversight into Su’s tenure as acting secretary and demanding answers from the Government Accountability Office on the legality of Su’s position.
This will be resolved in court eventually, but it shouldn’t have to be. The nomination is entirely within Democrats’ control, yet Biden nominated someone with policy views so radical and a track record so poor that they can’t confirm her. Confirmation votes aren’t subject to cloture, so Democrats don’t need a single Republican to vote for a nominee. Biden should withdraw Su’s nomination and pick someone else whom the Senate would confirm.