Was This the Plan All Along?

Citing the unprecedented delay in her confirmation as Secretary of Labor, calls are continuing to grow for President Biden to withdraw Julie Su’s nomination.

However, the Biden administration may have been expecting this situation from day one, knowing they could argue that she could keep being acting secretary indefinitely.

If Su fails to get through the Senate, it is that “plan B” that will almost certainly end up in the courts, one way or another.  And since courts take time (see Biden’s knowingly unconstitutional vote-bribing student loan forgiveness 2022 election scheme) the matter could – at least as to Su keeping her job as long as Biden is president – be moot.

Sen. Bill Cassidy (R-LA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, asked the Biden Administration Thursday to withdraw the nomination and warned that “(A)ny attempts to bypass the will of Congress, especially its constitutionally mandated advice and consent role, is unacceptable.”

Su was the deputy labor secretary until her predecessor, Marty Walsh, left to take over the NHL players union, triggering her acting secretary status.  Typically, under a law called the Vacancies Act, Su, who was nominated about four months ago, would have a 210-day time limit – for her, that’s mid-October – to her “acting” term.

However, the Labor department has its own “succession statute” which states that the deputy becomes the acting secretary automatically and shall “perform the duties of the Secretary until a successor is appointed…”

The labor statue has no time limit – confusion aspect one.

The second issue is that Su’s nomination is still technically “pending” before the Senate.  Because of that, it is possible that she can remain acting secretary for as long her nomination is pending, according to a recent Congressional Research Service non-Su specific report on the Vacancies Act (if you wish to read the entire report the PDF link is at the bottom of the article.)

A nomination can remain pending for an entire two-year congressional session (see Eric Garcetti’s ambassadorial quest) – confusion factor two.

At the request of the chair of the House Committee on Education and the Workforce (it oversees the Labor Department) Rep. Virginia Foxx (R-NC) the Government Accountability Office is currently reviewing the matter though no timeframe is set for a decision.  If the GAO finds there is a problem, it would notify Congress and the Biden team of that fact, upon which – typically – an administration follows the recommendation and makes a change (some sort of version of the issue has come up quite often in the past few years.)

Su’s confirmation is in serious trouble, if not essentially dead at this point.  Her nomination has been attacked by business and freelancer groups (Su aggressively enforced the anti-gig economy AB5 law when she was California’s labor secretary during the pandemic) and anyone paying attention who cannot understand how a person who was in charge of the EDD while it was being pillaged by fraudsters to the tune of $40 billion could ever expect to get a new job, let alone a more important job.

Last week, Democrat West Virginia Sen. Joe Manchin came out against Su, meaning that if she loses one more senator her nomination is toast.

Interestingly, it may already be – a Biden spokesperson told Politico that the administration was hoping that both Manchin and Arizona Sen. Kyrsten Sinema (technically Independent but former Democrat) would reconsider their position on Su.

Unlike Manchin, Sinema has not publicly stated she will vote no – confusion factor three.

Cassidy specifically called out the Biden administration for seemingly keeping the nomination alive despite knowing it would not pass, allowing Su to continue in the job knowing she would most likely be voted down by the Senate.  Here’s what he wrote to Biden:

“White House officials have communicated to the press that your administration does not have the votes in the Senate to confirm Julie Su’s nomination. This creates the perception that DOL’s decision to utilize its authority under 29 U.S.C. § 552 is an attempt to protect Ms. Su’s ability to serve as Acting Secretary, in perpetuity, even if she is unable to secure the votes required for Senate confirmation. It is my view that this use of the Succession Act violates the constitutional provision of advice and consent and would potentially open any DOL action under Julie Su’s leadership to legal challenges.”

Confusion factor four.

While much of this may seem like inside baseball bureaucrat stuff, figuring out the issue could have serious real-world consequences. If Su serves beyond the 210-day limit and it turns out she was not allowed to do that, it could mean that anything she did in office from day 211 on may not have been legal.  Considering the regulatory power of the Labor Department, the amount of damage to both businesses and workers could be catastrophic, let alone the crushing number of lawsuits that would be unleashed.

California Rep. Kevin Kiley (R-Rocklin) has been a staunch Su critic since her nomination: 

“Su’s allies have tried to make a legal argument relating to the interplay of the Federal Vacancies Reform Act of the statute that created the position of Deputy Secretary of Labor. This argument is without merit,” said Congressman Kevin Kiley, R-Rocklin.  “There is no statutory authority to have an Acting Secretary who has been nominated for permanent Secretary continue serving indefinitely, with or without confirmation; nor could there be because any such statute would violate the Constitution.”

If and when the senate will vote on Su’s confirmation is not yet known.