National industry groups have raised the specter of legal action if Acting Secretary of Labor Julie Su is kept in her job indefinitely despite her failure thus far to be confirmed by the Senate for the permanent gig.
The stalemate is so unusual, say legal experts, it could even raise constitutional issues and set a terrible precedent if allowed to stand.
Flex, the trade association representing such gig economy companies like Lyft, Uber, and DoorDash, said in a letter to President Biden that “Simply put, by declining to act on Ms. Su’s nomination, the Senate is advising against the policies she has espoused and declining to consent to her leadership.”
Flex is specifically worried that Su will impose at a national level a version of California’s AB-5, a law designed to reclassify independent or freelance workers as regular employees, largely in order to allow Big Labor to try to unionize them.
“Flex remains concerned that Ms. Su’s leadership could lead to upheaval that is national in scope,” it wrote to Biden. “(A)ny action taken to finalize the proposed worker classification regulation under Ms. Su’s current leadership as Acting Secretary would circumvent the Senate’s constitutional role of providing advice and consent on nominees.”
While Su – who helped craft and then zealously enforced AB 5 while she was California’s Secretary of Labor – has stated she would not nationalize AB 5-type regulations, her credibility on the matter with business groups – and at least 50 senators – is, at best, shaky.
In other words, when the Labor Department releases new rules and regulations regarding the classification of independent workers – which it will do in October – the overriding fear is that Su will attempt to shoehorn in as many AB 5-type rules as she can despite the fact that Congress itself has failed to pass a bill – called the PRO Act – that would do much the same. And Su’s uncertain status would play a major role if and when any lawsuit is filed in response to the new rules.
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, House Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC), 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’s pathway to confirmation has stalled. For the sake of job creators and working Americans, Biden must pull Su. Instead, he has turned to a loophole in order to bypass a Senate confirmation process,” Foxx said. “Par for the course for a president hellbent on breaking the law to get his way.”
While much of the national opposition has focused on the issue of independent workers, Su may be best known in California for overseeing the Employment Development Department while it spewed $40 billion dollars out to fraudsters during the pandemic.
Su – then deputy secretary – was nominated by Biden in early March after Secretary Marty Walsh resigned to take over the NHL players’ union. She was passed out of the Senate Health, Education, Labor, and Pensions Committee on a strict party line vote and then floundered for weeks in limbo waiting for a final full-senate conformation vote until the Biden administration – realizing that it could not get Su confirmed – said she was staying on anyway.
The constitution requires that any President seek the “advise and consent” of the Senate when making certain appointments, the Cabinet included. By side-stepping this process, Workplace Policy Institute attorney Michael Lotito says the administration has potentially created a constitutional issue.
Normally any “acting” department head has the rights and duties of a permanent occupant of the job. And, normally, acting heads are limited to about 210 days in office. But the special Labor Department statute would seem to obviate that limit and the fact that the administration has publicly stated Su cannot be confirmed make this situation unique, Lotito said.
“It is an open question whether or not it is (the Labor Department law) constitutional because it permits a president to totally bypass ‘advice and consent,’” Lotito said. “That’s a pretty amazing thing.”
Complicating the matter for the Biden administration is the fact they have publicly stated Su cannot be confirmed, though they maintain they will continue to try to get the 50th guaranteed vote they need. Doing so, they argue, means the nomination process is on-going, though why they admitted to not having the votes in the first place is politically and legally mindboggling.
“It’s unique because they know she can’t be confirmed but they are keeping her in the job,” Lotito said. ‘That’s just bad government” and, if allowed to stand, could possibly set a precedent for future presidents to ignore the senate as well, Lotito warned.
As he did with the student loan forgiveness, Biden is showing with Su his contempt for the constitution and the overriding nature of his political schemes. It might not be legal but, hey, let the courts take their sweet time and sort it out because by then it won’t matter anymore. The votes will already be counted.
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