Is She? Can She? Should She? Julie Su Labor Secretary Confirmation Battle Takes New Twists

A congresswoman is wondering if Julie Su can continue to be acting Secretary of Labor.

Pundits are wondering if her being side-lined by President Biden from the upcoming autoworker union contract talks is a sign even the White House is worried about her capability for the full-time gig.

And, in light of a new report that now calls the Employment Development Department “structurally insolvent,” critics continue to pound her atrocious handling of unemployment benefit fraud debacle that cost California $40 billion dollars while she oversaw the agency.

To start with, there is Su’s unique current position. As deputy secretary of the Department of Labor, she would typically fill in for the Secretary. When then-Secretary Marty Walsh left in February to run the NHL player’s union, Su stepped into the role as “acting” secretary.

Biden then nominated her to take over the job on a full-time basis and that nomination has stalled due to at least four Democrat senators refusing thus far to commit to vote for Su’s confirmation.  If Su loses two of them – and she has most likely already lost one, Sen. Joe Manchin (D-WV) – her nomination is toast.  That is why Senate Majority Leader Chuck Schumer (D-NY) has yet to even schedule a final vote on the issue – he’s afraid it will lose.

Oddly though, it is possible Su could continue as “acting” secretary until if and when Biden nominates someone else for the job, making her formal confirmation potentially moot.

That scenario has the chair of the House Committee on Education and the Workforce Rep. Virginia Foxx (R-NC) wondering if Su can legally do that.  While not part of the confirmation process, Foxx’s committee oversees the Department of Labor on the House side and to that end Foxx penned a letter to the Government Accountability Office (GAO) just that.

“As her nomination to become the next Secretary of Labor continues to languish in the Senate, questions regarding the length of time she can remain the head of the Department of Labor need answers. Therefore, the Committee is examining the ability of an Acting Secretary of Labor to remain in office in accordance with the Federal Vacancies Reform Act of 1998,” the letter stated. “The Committee is aware of a potential conflict between two federal statutes regarding an Acting Secretary of Labor’s tenure: 1) the statute that created the position of Deputy Secretary of Labor and 2) the Vacancies Act. The Committee requests that the Government Accountability Office issue an opinion about what legal authority determines an Acting Secretary of Labor’s tenure in office and DOL’s adherence to that statute.”

In a nutshell, Foxx has tasked the GAO to figure out which law takes precedence and concluded by asking 

“Is Ms. Su serving as Acting Secretary in compliance with the applicable governing legal authority?” and 

“Are there time limitations on Ms. Su’s acting service, and if so, what are those limitations?”

The letter, sent Thursday, is currently under review by the GAO legal team, an office spokesman said, and that they hope to have a reply sometime next week.

As to the auto worker labor negotiations issue, Biden has tapped long-time DC insider and advisor Gene Sperling to be the administration’s point man in the upcoming contract talks between the Big Three car companies and the United Auto Workers union.  Sperling has said he will be working closely with Su.

Su also just told reporters that she has no plans at this time to step into the brewing dispute between UPS and its drivers.

These moves, plus Biden hiring of Tom Perez as a “Senior Advisor, Assistant to the President” for “his perspective and relationships” as a past Secretary of Labor, have many wondering if the White House is less enamored of Su as its pick to head up the Department of Labor than it says it is.

“The president sidelining Acting Secretary Julie Su does not demonstrate he has confidence in his own Labor nominee,” said Ty Bofferding, Republican spokesman for the Senate Health, Education, Labor, and Pensions (HELP). “We don’t need a labor secretary who has to outsource her own job.”

It was the HELP committee that Su appeared before for her first confirmation vote (prior to the full senate.)  Su’s lack of experience handling labor disputes was a major concern raised by Committee Ranking Member Sen. Bill Cassidy (R-LA)  and others during that hearing, which Su passed through on a strict party-line vote.

Finally, the latest news that Su literally ran the EDD into the ground – it has been determined by state Legislative Analyst’s Office to now be “structurally insolvent” while she was in charge has critics again calling for Biden to drop her nomination.

“As a result of Julie Su’s historic unemployment insurance fraud and California’s budgetary mismanagement, state businesses are facing billions in tax hikes over the next several years,” said California’s-own Rep, Kevin Kiley (R-Rocklin).  “California’s EDD debacle and the incompetence tax small businesses are now forced to pay demonstrate that California’s policies are a warning to, rather than a model for, the nation. They also illustrate just how ill-advised Julie Su’s nomination for US Labor Secretary is.”

In short, the last few days have added a new twist or two to the Julie Su wind.