In an effort to dislodge Julie Su from the federal body politic, Louisiana Sen. Bill Cassidy introduced a bill today that would end her time as “Acting” Secretary of Labor next month.
In other words, it seems Cassidy – the ranking Republican on the Senate Health, Education, Labor, and Pensions Committee – really meant it when he asked Su to leave yesterday.
“Instead of allowing the Senate to provide advice and consent on Julie Su’s nomination, the Biden administration is attempting to circumvent Congress and the Constitution to keep her as Acting Secretary indefinitely even though she lacks the votes for confirmation,” Cassidy said. “This legislation prevents further political abuses of the Constitution and ensures all nominees for Secretary of Labor receive the full advice and consent of the Senate.”
Cassidy’s “Advice and Consent Act” would cauterize the anomaly the Biden administration is using to claim Su can stay as “Acting” secretary indefinitely (well, as long as Biden’s president.)
Typically, high-level federal “acting” appointments are just that – acting – and meant to be a temporary stop-gap measure until the Senate approves – as it is constitutionally bound to do – the permanent secretary.
That process is covered under the federal Vacancies Act and allows such appointees to serve for about 210 days, at which time they must be replaced, one way or the other.
The Biden White House, however, claims that a separate Department of Labor law allows Su to remain in the job as she was the deputy secretary prior to the resignation of Marty Walsh earlier this year to go run the NHL players union.
The administration believes that law states that the deputy secretary of the department – who would normally step in as secretary if he or she left or died or what have you – can stay in the job without having to go through the Senate confirmation process (though even that law would not allow anyone who was not the deputy secretary to stay.)
Su is most infamous amongst Californians for her zealously draconian enforcement of anti-freelancer bill AB-5 , which placed thousands of careers at risk, and her gross mismanagement of the Employment Development Department, which lost upwards of $40 billion to fraud during the pandemic. Su has repeatedly claimed she tried to stem the fraud the moment she became of it and that the fraud was mostly confined to a single federal program she couldn’t do anything about anyway.
Both of those claims are false.
While the bill may have a sliver of a chance of getting through the Democrat-controlled Senate and would almost certainly pass the Republican-held House of Representatives, the likelihood that Biden would sign it is about the same as Su actually confirmed for the job by the Senate: in other words – zero.
If it were enacted, though, the law would take effect immediately, override the labor department’s special succession glitch, and force Su from office the moment she had served 210 days as “acting” secretary.
Beyond the obvious politics involved, legal observers note that if and when Su’s department issues a new rule or regulation or interpretation after the 210-day limit, that action would be immediately subject to a lawsuit claiming Su did not have the authority to do so because she was not properly holding the office.
Considering the number of rules the Labor Department issues and their impact on the national business climate and the economy, that uncertainty has caused alarm on both sides of the aisle.
Su hits the 210-day mark on about October 10th.
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