The White House could be sued over Julie Su.
That’s the buzz in Washington as the Biden administration attempts to keep Su on as acting labor secretary indefinitely and without Senate confirmation.
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Business groups, Republicans, and even some Democrats are upset about the legally dubious move.
“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, which represents gig economy companies like DoorDash, GrubHub, Lyft, and Uber, wrote to the White House Monday. “As a result, any 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 the letter does not include a legal threat, it may indicate battles to come over Su’s authority as labor secretary and the authority of any moves she makes in that capacity.
Su took over in March for Marty Walsh, who left the Department of Labor to represent professional hockey players. The secretary of labor is supposed to be confirmed by a simple majority in the Senate, but President Joe Biden is having trouble making that happen for Su.
Instead, he’s hoping to use legal ambiguity to keep her in place indefinitely.
“Upon Secretary Walsh’s departure, acting Secretary Su automatically became acting secretary under its organic statute, not under the Federal Vacancies Reform Act,” a White House official said last week. “As a result, Su is not subject to the time limits of the Federal Vacancies Reform Act and she can serve as acting secretary indefinitely.”
Though Democrats hold a 51-49 advantage in the upper chamber, Sen. Joe Manchin (D-WV) has come out against Su over her “progressive background.” Manchin’s defection alone would still leave the party with a tiebreaker advantage, but centrist Sens. Kyrsten Sinema (I-AZ), Angus King (I-ME), and Jon Tester (D-MT) have not publicly declared if they will support Su or not.
The “progressive” background Manchin refers to is Su’s stint as California’s Labor and Workforce Development Agency, during which the state’s AB 5 legislation attempted to restrict independent contracting. California voters later overturned it via a ballot initiative.
Regardless of that rule, Tester has made clear he does not support keeping Su on without confirmation, likening it to the actions of former president Donald Trump.
“I don’t support that myself. I didn’t support it in the last administration. I don’t support it in this one,” he told NBC News. “I just don’t think they can do the job they need to do in an acting position. That’s my own opinion, could be wrong. But I just think there’s much more certainty if you’ve been confirmed.”
Trump was widely ridiculed for keeping cabinet members on in acting roles in order to circumvent the Senate.
The Donald kept Chad Wolf as acting Department of Homeland Security secretary until and even after a federal judge ruled that the move violated the Constitution’s appointments clause. The Government Accountability Office in September 2020 alleged that 15 Trump officials at 12 agencies were serving in violation of the Federal Vacancies Reform Act.
Biden came into office promising to restore normalcy to Washington but may also be under pressure due to his repeated pledge to be the most pro-union president in history.
Unfortunately, the Su spat itself has become a Washington norm, argues former White House chief ethics lawyer Richard Painter.
“Congress has become relatively useless at reigning in executive power,” Painter, now a University of Minnesota professor, said. “Democrats were furious about Trump raiding the defense budget without the permission of Congress. But then Biden did his $400 billion student loan deal, and Democrats didn’t say a word.”
“The parties just switch playbooks depending on whether their guy is in the White House or not,” he added.
But Painter said there is likely nothing preventing Su from continuing to perform her role in an acting capacity and from finalizing new agency rules, absent any laws specifically limiting the temporary role.
Dan Bowling, who teaches labor and employment courses at Duke University, said there’s no doubt Su has the authority to run the agency on a day-to-day basis. The situation is murkier when it comes to implementing new rules, he argues, especially controversial ones made without a Senate-confirmed secretary.
“I would think that’s pouring kerosene on the fire to try an AB5-like move at the federal level in an acting capacity,” he said.
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White House officials have argued that Su’s actions leading the Labor Department would be challenged whether she’s confirmed or not, and Biden officials defend the job she’s done so far.
“[The president] nominated her because he believed that she was eminently qualified to do the job,” press secretary Karine Jean-Pierre said July 19. “And she has done it in a brilliant way.”
