The Government Accountability Office (GAO) said today that Acting Secretary of Labor Julie Su can remain in the position as “acting” secretary for as long as President Biden wants her to stay.
“As the Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary … until a successor is appointed. The Vacancies Act’s time limitations do not apply to her service,” concluded GAO General Counsel Edda Emmanuelli Perez.
Essentially, the GAO said the specific Department of Labor law that allows the deputy secretary – which Su was – to step into the role takes precedence over the more general government-wide Vacancies Act, which typically limits “acting” positions to about 210 days.
“Accordingly, if Ms. Su continues to serve as Acting Secretary pursuant to section 552 (the Labor department rule), she may continue to serve in that position until a successor is appointed,” wrote Perez.
Su was nominated to be the new Secretary of Labor in late February when her predecessor Marty Walsh left the job to take over the NHL players union; she has been serving as “acting” secretary ever since.
However, the GAO opinion is just that – an opinion. An important opinion, without question, but today’s report will not end the battle over Su staying in her position without being confirmed by the Senate as required by the constitution’s “advice and consent” clause.
Su failed to secure the necessary support for a vote on her nomination in the Senate to even be scheduled. Moderate Democrats like Sen. Joe Manchin (D-WV) and others balked at Su’s incompetence – she was in charge of the unemployment agency when it lost up to $40 billion to fraud – and her hard left, pro-Big Union politics (she helped write and zealously enforced California’s anti-freelancer AB 5 law and many are suspicious she will try to take that idea national) stance.
Telling of the administration’s adamantine stance that Su is the cabinet secretary no matter what, she was relatively recently added to White House’s “Cabinet in order of succession to the presidency” web page. The Secretary of Labor slot was removed from the order of succession when Walsh retired and left off until the administration announced they were keeping Su, ignoring the Senate’s refusal to confirm.
“Despite not having the votes to be approved by the Senate, the Biden administration is keeping anti-worker Julie Su installed as the head of the Department of Labor,” said Rep. Virginia Foxx (R-NC), chair of the House Education and the Workforce Development committee. It was Foxx who asked the GAO to weigh in on the matter in July: “This situation is depriving Congress of its role in providing advice and consent on nominees, and it should never happen again.”
There are two bills currently in Congress attempting to clarify the discrepancy and remove Su from office – Rep. Kevin Kiley (R-Rocklin) and Sen. Bill Cassidy (R-LA) have both put forward measures to change the labor department law to have it fall more in line with the general Vacancies Act.
While Cassidy’s bill faces a tougher road in the Democrat-controlled Senate and neither would (presumably) ever be signed by Biden, Kiley’s bill recently cleared out of committee and is headed for a vote of the full House of Representatives sometime soon.
Separate from the Congressional track, Su’s continuing in her position beyond the 210-day time limit set for most “acting” appointments will most assuredly figure prominently in more than one potential lawsuit against the Department of Labor.
“The GAO is not the definitive source of Congressional intent,” said Michael Lotito of the San Francisco-based Workplace Policy Institute. “This will be litigated in due time and it will be up to the courts.”
Lotito said that Su continuing to hold office despite her failure to get confirmed for the job and the fact that she and the administration know she will not be confirmed in the future is diametrically opposed to what the constitutional “advice and consent” rule.
“If you don’t consent, then you are advising the administration ‘No,’” Lotito said. That means Su remaining in her job is not some political glitch, but the Biden administration actively ignoring the will of Senate and the constitution.
Later this year, the Labor Department is expected to issue a series of new regulations, some of which will be quite controversial. If and when that happens, any lawsuit brought by a business opposing a regulation will most assuredly include a variation on “the regulation is bad and by the way it can’t be enacted anyway because Su is not really the Secretary of Labor.”
President of the California Business and Industrial Alliance Tom Manzo said the issue boils down to a simple idea:
“It’s not a question of whether she can stay, but whether she SHOULD stay,” Manzo said. “If she can’t pass confirmation muster in the Senate due to her lack of qualifications, she should step aside for someone who can.”
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