Joe Biden’s Attempt to Bypass the Senate

National Review Online

Monday, July 24, 2023

 

President Biden’s nomination of Julie Su for secretary of labor has not received Senate approval, but the administration plans to keep her as secretary of labor anyway.

 

Su was confirmed by the Senate as the deputy secretary of labor in 2021. When Secretary Marty Walsh resigned in March, Su took over as acting secretary, pending the confirmation of a new secretary. Rather than accept that Su does not have the support of the Democratic Senate and nominate someone else, the Biden administration’s plan seems to be to leave her as acting secretary forever.

 

The Senate would be right to reject Su. Her record of far-left policy and administrative incompetence as California’s secretary of labor from 2019 to 2021 was so poor that every Republican and at least one Democrat, Joe Manchin (W.Va.), is opposed to her nomination. Kyrsten Sinema (I., Ariz.) has not announced a position and has said she would not do so before a vote. The fact that Chuck Schumer has not scheduled a vote, which would not be subject to the filibuster, indicates that she would likely vote no. Jon Tester (D., Mont.) is also undecided.

 

This wouldn’t be the first time Manchin and Sinema would thwart Democrats’ progressive plans. They also prevented Democrats from passing the full-sized Build Back Better Act that progressives wanted in 2021. The Biden administration’s response then is the same as its response now: Try to bully Manchin and Sinema into changing their minds.

 

They’re unlikely to do so. “I’ve told [the White House]: ‘Don’t give me people that are advocates.’ This is the concern I’ve had,” Manchin said. “[Sinema] remains focused on doing what’s best for her state — not party bosses,” a Sinema spokesperson said.

 

Article II, Section 2 of the Constitution says that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” officials such as cabinet secretaries. The Senate’s advice on Su is clear: Nominate someone else. And if that advice is not followed, the Senate is not going to give its consent to her nomination.

 

So why does the Biden administration think it can keep Su in the position? Legal chicanery. There are two statutes at play. The first is the Vacancies Act, which sets a limit of 210 days on how long someone can serve as acting secretary of a federal department. Su has already been acting secretary for 132 days. The second is 29 U.S.C. Sec. 552, which is the statute that describes the deputy secretary of labor position. It says in the event of the secretary of labor’s resignation, the deputy secretary shall “perform the duties of the secretary until a successor is appointed,” without specifying a time limit.

 

The Biden administration maintains that because it made Su acting secretary under the authority of 29 U.S.C. Sec. 552, the Vacancies Act time limit does not apply. It is in keeping with the administration’s attitude towards the rule of law, which is: do whatever it wants and dare others to sue.

 

Once Su’s 210 days are up on October 7, a business injured by a Department of Labor regulation is likely to sue, arguing that the regulation has no force because Su is not the legitimate secretary anymore. Federal courts ruled that acting positions in the Department of Homeland Security during the Trump administration, including the secretary, were unlawful, and some actions those officials took were invalidated. Biden could be setting himself up for a similar fate.

 

Representative Virginia Foxx (R., N.C.), chairwoman of the House Education and Workforce Committee, sent a letter to the comptroller general, the official who oversees the enactment of appointments, asking him to clarify under what legal authority Su is currently serving. Senator Bill Cassidy (R., La.), ranking member on the Senate Health, Education, Labor, and Pensions Committee, sent a letter to President Biden that said he believes leaving Su as acting secretary without Senate confirmation is unconstitutional and would leave any Department of Labor action carried out under her watch subject to legal challenge.

 

Foxx and Cassidy are right to raise these concerns. This is not a case of the filibuster obstructing a nomination or the opposition party refusing to confirm any cabinet nominee. Eight of Biden’s cabinet secretaries were confirmed with 70 or more senators voting yes. Six got 84 or more. Walsh got 68 votes. Su’s nomination has failed because Su is a poor choice for the job. She received zero Republican votes when she was confirmed as deputy secretary, and with a razor-thin Senate majority, Biden should have chosen a nominee with more support.

 

He didn’t, and he should have to live with the consequences and appoint someone else.