The top Republican member of the Senate Health, Education, Labor and Pensions (HELP) Committee has introduced legislation taking aim at the pending nomination of Acting Labor Secretary Julie Su to serve as Labor Secretary.
More specifically, Sen. Bill Cassidy (R-LA), who serves as the ranking member of the Senate HELP Committee, introduced the Advice and Consent Act to prevent the executive branch from circumventing Congress’ constitutional duty to confirm the Secretary of Labor.
The Senator notes that his legislation comes as Julie Su’s nomination has lasted for 176 days, arguing that this is the longest a cabinet-level nominee has waited for a floor vote when the same party controls the White House and the Senate.
Su currently is serving as Acting Secretary of Labor under the Department of Labor’s (DOL) succession statute, which the Biden administration contends allows her to continue serving as Acting Secretary because she was previously confirmed as Deputy Secretary.
The DOL last March explained in a letter to the Government Accountability Office (GAO) that Su is serving as Acting Secretary of Labor, not under the Vacancies Act, but under a DOL-specific succession statute (29 U.S.C. Section 552), allowing the Deputy Secretary to perform the duties of the Secretary of Labor.
The DOL succession statute apparently does not have a time limit. Section 552 stipulates that the deputy secretary “shall (1) in case of the death, resignation, or removal from office of the Secretary, perform the duties of the Secretary until a successor is appointed, and (2) in case of the absence or sickness of the Secretary, perform the duties of the Secretary until such absence or sickness shall terminate.”
In contrast, Cassidy notes, the Federal Vacancies Reform Act sets a time limit of 210 days that an individual can perform the role of a cabinet-level position without Senate confirmation.
“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,” Sen. Cassidy stated. “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.”
According to Cassidy, his legislation would reform the DOL succession statute by preventing Su and future Labor Secretary nominees from serving in an Acting Secretary capacity past 210 days.
In the meantime, Sen. Cassidy, in a Senate floor speech, called on President Biden to withdraw Su’s nomination, urging the President to “put forward a nominee who is committed to fair enforcement of our nation’s labor laws.”
“Not only is this use of the DOL succession statute a violation of the advice and consent provision of the Constitution, but it will open up any action taken under her leadership to legal challenges,” the Senator further emphasized, adding that major business groups have already indicated they are prepared to bring legal action against the DOL if a rule on independent contractors is finalized while Su remains Acting Secretary.
Su was nominated in April 2023 to replace Marty Walsh, who resigned to take a position leading the NHL Players Association. Throughout her tenure with the DOL and her nomination, she has been on the receiving end of blistering attacks from House and Senate Republicans and others for several issues, including widespread unemployment fraud that occurred in California during her time as California’s Labor Secretary. Su has also been criticized for her support of California’s Assembly Bill 5, which codified the state’s worker classification test making it harder to classify gig workers as independent contractors.
