Biden Backdoors Su, Opponents Threaten Legal Action

President Joe Biden has reportedly decided to keep Acting Secretary of Labor Julie Su as “acting” secretary despite the fact that she cannot manage to get through the Senate to get the job for real.

Sources have told both Reuters and Politico that Biden will keep her in the job, almost certainly until the 2024 election, no matter if the Senate confirms her or not.

This unprecedented move side-steps the normal Senate confirmation process that all cabinet secretaries – and many other federal officials – must go through and has Su’s detractors already threatening legal action.

“It’s no surprise Su is getting another hall pass from this administration,” said California Business and Industrial Alliance (CABIA) President Tom Manzo.  “We will not let this go unchallenged and we are reviewing our legal options to keep Biden from skirting the Constitution in this blatantly improper decision.  The ‘advice and consent’ clause is there for a reason – it’s to keep presidents from becoming dictators.”

California Rep. Kevin Kiley (R-Rocklin) sits on the House committee that oversees the Labor department. In light of the Biden move, he reminded the president that the department’s budget must through that committee.

“Biden couldn’t get the votes, so now he says a vote isn’t needed. The Constitution says otherwise,” Kiley said. “Congress controls the Labor Department’s funding. We will not let this lawlessness stand.”

If Su could get confirmed by the Senate – Biden nominated her four months ago- this issue would be moot. But since she cannot be sure of getting 50 yes votes (Vice President Harris would break the tie in her favor) not vote has even be scheduled.

The United States Constitution states the following: 

“…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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

That being said, the current Su situation does have certain gray areas.

Su was the deputy labor secretary until her predecessor, Marty Walsh, left to take over the NHL players union, triggering her acting secretary status.  Typically, under a law called the Vacancies Act, Su, who was nominated about four months ago, would have a 210-day time limit – for her, that’s mid-October – to her “acting” term.

However, the Labor department has its own “succession statute” which states that the deputy becomes the acting secretary automatically and shall “perform the duties of the Secretary until a successor is appointed…”

The labor statue has no time limit.

A second issue is that Su’s nomination is still technically “pending” before the Senate.  Because of that, it is possible that she can remain acting secretary for as long her nomination is pending, according to a recent Congressional Research Service non-Su specific report on the Vacancies Act.

The Government Accountability Office was asked just 10 days ago by Rep. Virginia Foxx (R-N.C.) – chair of the House committee overseeing the labor department – to determine which law took precedence as they seem to be in conflict. 

The GAO said Monday they have begun actively investigating the issue; whether or not today’s Biden move is an attempt to cut off that investigation at the knees and/or to put Su in place before it issues a finding is unknown.

Biden will apparently not formally withdraw Su’s nomination, nor will he nominate someone else, allowing – the administration claims – Su to continue to serve despite the constitutional rights and duties of the Senate being ignored.

“The administration seems to be driving a semi-truck through a legal loophole by keeping Julie Su in an acting role despite bipartisan opposition in the U.S. Senate,” said George O’Connor, spokesman for the Owner-Operator Independent Drivers Association (OOIDA), a national self-employed trucker organization.  “It’s clear she doesn’t have the votes to be confirmed and her nomination should be pulled.”

O’Connor said his group, like CABIA, is weighing “all options” going forward.

The OOIDA is one of many business groups opposing Su for her zealous enforcement and support of California’s AB 5 anti-freelancer law.

Despite her protestations to the contrary, it is widely suspected that Su will attempt to shoehorn similar regulations into federal law.  The PRO Act, which big labor supports and roughly copies California’s AB-5 at a federal level, has failed in Congress at least twice.

There are reportedly a number of new regulations that have been delayed by the uncertainty over Su.  It can be expected now that they will be put into place as quickly as possible, as anything Su does after her 210 time-limit could be deemed unlawful if she in fact is not allowed to serve indefinitely as Biden claims.

Su’s nomination has also been opposed by, well, anyone aware of her tenure as California’s labor secretary during which she sat by and did nothing until it was far too late as $40 billion was pillaged from the EDD during the pandemic.

“There are more than 40 billion reasons she should not be labor secretary,” Manzo said.

The StandAgainstSu advocacy group has fought her confirmation since it was announced in February and was none too pleased by the latest twist in the Su saga.

Said group spokeswoman Rachel Tripp:  “After five months of failed confirmation attempts, President Biden does not want to face the truth – that Julie Su is unfit to be Secretary of Labor. Deferring a vote not only makes a mockery of the nomination process, but is also a pathetic attempt to claim victory in a fight that he knows cannot be won through legitimate means.”