Biden Re-Nominates Julie Su

When a pope is chosen, the world is informed by a plume of smoke from the chimney of the Sistine Chapel – white for “we have a new pope!” black for “nope, maybe next vote.”

Will Julie Su see the white smoke this time?

Or the dense, acrid black smoke that billowed around her first nomination for Secretary of Labor last year?

One thing that is certain is that an entire cloud of smoke is being blown.

President Joe Biden today officially re-nominated Su for the top spot at the Labor Department, even though the administration is fully aware she will not be confirmed by the Senate.  She will, though – save a successful court challenge – remain “acting” secretary for the rest of the year, with all of the direct regulatory power that entails.

Not only does Su have no chance of being confirmed, the likelihood the Senate will even take a vote is microscopic.  No full Senate vote was taken last year – and won’t this year – because if Su were to lose that vote her nomination would be officially dead and she could no longer be the “acting” secretary. 

In other words, lose the vote, out the door you go – don’t have a vote but pretend you will have one eventually and you can stay.

This blatant nose-thumb at the constitution’s “advice and consent” clause has driven members of Congress and legal experts to distraction.  The administration is hiding behind an odd Labor Department-specific, very legally dubious exception to the federal Vacancies Act to keep Su in office, setting a terrible precedent for any future president who may want to avoid the Senate confirmation process.

“This is a fundamental end run around the constitution of the United States,” said Michael Lotito of the San Francisco-based Workplace Policy Institute. “If you follow the argument to its logical conclusion, any future president could just re-nominate their entire “acting” cabinet every year, cut out the Senate entirely, and gut the constitution.”

A number of members of Congress asked Biden not to re-nominate Su, including Rep. Kevin Kiley (R-Rocklin).

“It is beyond belief that President Biden has chosen to re-nominate his failed nominee. The Senate rejected Julie Su as Labor Secretary on a bipartisan basis last year because of her gross mismanagement and anti-worker agenda,” said Kiley. “There is absolutely no reason to expect a different result this year. The length this Administration will go to weaken our economy and workforce is astounding.”

While Labor Secretary is typically seen as a mid-range Cabinet spot, Su in fact has vast potential power, power that will be seen in the coming day(s?) when the department releases new “independent contractor” regulations. While Su has repeatedly told Congress there would be no federal version of California’s dreaded anti-freelancer, anti-gig economy AB 5 law, that – surprise, surprise – may not be actually true.

The draft rule released last year was suspiciously vague as to how to define an “independent worker” versus a regular employee, leading most business observers and freelancers with a very queasy feeling as to what will come out very soon.

“We have the independent contractor rule coming out, we have new overtime regulations, and we have AI and that radical transformation of the workplace coming,” Lotito said.  “The Labor Secretary is one of the most important jobs in the country and it’s being filled by someone who cannot even get the job.  If we do not have the finest workforce in the world, the 21^st will not be the next ‘American century.’”

Su, the deputy secretary at the time, was first nominated last February when her then-boss Secretary Marty Walsh left to take over the NHL players union.

Su squeaked through a Senate committee hearing on a party-line vote but hit a wall in the entire Senate, which, according to the constitution’s “advice and consent” clause, must confirm her nomination.

But Su’s disastrous tenure as California’s labor secretary – draconian enforcement of AB-5, managing to loss more than $32 billion in pandemic unemployment fraud – and her deep ties to Big Labor called her fitness for office into question – a lot and quickly.

Split 51-49, Su could lose only one senator and keep her hopes of confirmation alive, as Vice President Kamala Harris would, presumably, break the 50-50 tie in her favor.

But Su lost more than one.  Democratic West Virginia Sen. Joe Manchin publicly said he would not vote for her, the White House admitted they had also lost Arizona’s Sen. Kyrsten Sinema, and a number of other moderate Democrats reportedly told the White House they were “no” votes as well.

Facing an assured defeat and knowing that would immediately end her tenure as “acting” secretary,  Senate Majority Leader Chuck Schumer (D-NY) did not even schedule a vote last year.

As the senatorial math has not changed, Schumer will follow the same path and Su will remain – despite what Kamala says… acting.