Republican member of Congress Kevin Kiley (R-Rocklin) today introduced a bill that would cut through the current questions swirling around acting Secretary of Labor Julie Su’s tenure in the job.
Essentially, the bill states that Federal Vacancies Act would definitely override the Department of Labor’s own “succession” statute, thereby limiting Su to 210 days in office as opposed to the Biden administration contention she can stay indefinitely even without Senate approval.
Kiley chairs the Workforce Protections Subcommittee, part of Virgina Foxx’s (R-NC) Education and the Workforce Committee, which oversees the Department of Labor (on the House side.)
“Su’s pathway to confirmation has stalled. For the sake of job creators and working Americans, Biden must pull Su,” said Foxx. “Instead, he has stretched the law to bypass a Senate confirmation process. Par for the course for a president accustomed to flouting the law to get his way. I am pleased to support Rep. Kiley’s bill to clarify federal law, putting an end to this administration’s efforts to skirt the law at the expense of workers and job creators.”
Su – former California Secretary of Labor responsible for enforcing the loathsome AB-5 anti-freelancer bill and for the state unemployment agency losing $40 billion to fraudsters during the pandemic – was the federal Department of Labor’s deputy secretary until the resignation of Secretary Marty Walsh. Biden nominated Su – who as deputy would automatically temporarily take over – for the job permanently in late February.
Since then, she has floundered in the Senate, unable to get the votes she needs to be confirmed for the job under the constitution’s “advice and consent” stricture that demands certain presidential appointees – like Cabinet members – be confirmed by the Senate.
Last week, the Biden administration claimed Su is allowed to stay in the job indefinitely because she was appointed under an unusual Department of Labor-specific statute rather than the standard Federal Vacancies Act which typically limits “acting” appointments to 210 days or so.
To try to clear up the issue, Foxx asked the Government Accountability Office to issue an opinion on which law takes precedent. Within 48 hours of that request, the Biden administration announced its plans to keep Su – whose work so far has been described as “brilliant” by press secretary Karine Jean-Pierre – despite her failure to be confirmed by the senate.
Su told Bloomberg News yesterday that “(Biden) has said that I am his labor secretary, and will remain in this position and I’m really honored to be doing that job.”
That statement stunned Workplace Policy Institute attorney Michael Lotito and it points to the exact threat to the U.S. Constitution the Biden administration is making by thumbing its nose at the confirmation process.
The administration, said Lotito, cannot afford the delays to their labor agenda involved in nominating someone else, hence the adamantine position on Su.
“The constitution may be inconvenient for them,” said Lotito. “But it exists.”
The precedent of using a bureaucratic hiccup to bypass the Senate would be disastrous, said Lotito. “The message they are sending is that ‘advice and consent’ is dead if you can try to justify some mechanism to go around it,” he added.
Lotito said the Kiley bill would be a good way to “clarify an ambiguous situation and help avoid a constitutional crisis in regard to what the president is doing.”
Much has been made in the media that Su serving as an “acting” secretary is not a big deal because, well, Trump had a slew of “acting” officials. The two situations are completely different and not just apples and oranges different, but kidneys and Legos different.
Trump appointed his “acting” people under the Federal Vacancies Act, while the Biden administration is specifically trying to get around not only the Senate but the Vacancies Act itself.
“This fight is not about the Vacancies Act,” Lotito said. “This is about a Department of Labor statute overriding the constitution.”
Just yesterday, a number of business groups said they are looking at all legal options if Biden keeps Su where she is past the 210-day limit.
As to whether the bill will pass, that is not yet known. However, observers say it stands a very good chance in the Republican-controlled House of Representatives and – considering the fact that Su has not been able to muster support there and even some Democrats are already loudly grumbling about the Biden bypass – may even have decent shot in the Democrat-controlled Senate.
If(when) it does get to the Senate, the vote on the bill could be seen as a “proxy vote” on Su’s nomination itself and losing that vote would be supremely humiliating for the administration.
Of course, if it passes through Congress the chances it will be signed by Biden are somewhere between snowball and hell. However, a veto would serve to amplify the constitutional issues and highlight this administration’s apparent contempt (see student loan forgiveness fiasco) for the document.
“Having made the worst possible pick for Labor Secretary, which the Senate is rightly rejecting, the President is trying to install his nominee anyway,” said Kiley. “Su faces bipartisan congressional opposition over losing $32.6 billion in taxpayer funds to fraud and for championing policies that destroyed the livelihoods of tens of thousands of independent workers. Our legislation will prevent Su from indefinitely serving in defiance of Congress and taking her record of failure in California nationwide.”
Tom Manzo, president of the California Business and Industrial Alliance, agreed.
“Julie Su’s refusal to acknowledge her lack of Senate support is a national embarrassment. She should immediately withdraw her nomination and make way for a confirmable consensus choice,” said Manzo. “I’m grateful for Rep. Kiley’s legislation, which ensures there will never again be a squatter in the Labor Department.”
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