With Julie Su Still Unable To Get The Support Of A Majority Of Senators, The White House Appears Ready To Attempt An End-Run Around The Senate

With Bipartisan Opposition To Julie Su’s Nomination To Lead The Department Of Labor And Democrat Leaders Stalling A Vote For Months, The White House And Some Senate Democrats Now Appear To Be Maneuvering To Keep Her Running The Department In An Acting Capacity Indefinitely, Despite Their Previous Vocal Opposition To Similar Moves


SENATE REPUBLICAN LEADER MITCH McCONNELL (R-KY): “For more than two years now, the Biden Administration has sent the Senate a steady stream of radical and unqualified nominees. That much is hardly news. But today, the President’s pick to serve as Secretary of Labor made an especially ignominious bit of history. Julie Su has now waited longer for confirmation by a Senate of the same party as the President than any previous cabinet nominee on record. Her nomination has spent four and a half months in limbo while Senate Democrats decide whether they can even muster a party-line confirmation vote. ‘We’re still taking input’ – That’s become some of our colleagues’ go-to line as they decide whether to hold their noses and vote this scandal-plagued left-wing activist onto the job…. Well, I’d suggest to our colleagues that there’s not too much that Ms. Su’s radical record has left to the imagination…. [I]n Washington, she’s worked overtime to give unions access to more of workers’ paychecks and veto power over fast-evolving industries where independent contractors and gig workers thrive…. American taxpayers have seen enough of Julie Su. When will Senate Democrats finally decide that they have, too?” (Sen. McConnell, Floor Remarks, 7/20/2023)


Julie Su’s Nomination Has Now Stalled Out For An Historic Amount Of Time

“No nominee has lingered longer without a confirmation vote when his or her party controlled the Senate and the White House, according to a historical analysis by the Congressional Research Service prepared for Sen. Bill Cassidy (R-La.). Republicans are demanding that Biden withdraw her nomination.” (Axios, 7/19/2023)

SEN. BILL CASSIDY (R-LA), Senate Health, Education, Labor, and Pensions Committee Ranking Member: “Over four and a half months have elapsed since President Biden announced Ms. Su’s nomination -126 days since it was officially transmitted to the Senate. No Cabinet level nominee has waited longer for a floor vote when the Senate and White House were controlled by the same political party. If your administration believes Ms. Su cannot receive the necessary votes for confirmation, then you should rescind her nomination.” (Sen. Cassidy, Letter to President Biden, 7/19/2023)

THE WALL STREET JOURNAL EDITORIAL BOARD: “If she lacks the votes to be confirmed, the President should nominate someone else. This would remove a legal cloud over her tenure that could jeopardize the department’s actions. The President doesn’t mind Senate advice but he has a problem with consent. That’s another reason to reject Ms. Su’s nomination and for legal challenges if Mr. Biden persists in flouting the Senate.” (Editorial, “Biden to the Senate: So Su Me,” The Wall Street Journal, 7/19/2023)


Pointing To Many Serious Concerns With Su And Her Record, Senate Republicans Have Called On The White House To Withdraw Her Nomination

“Republicans have lined up to oppose the former California Labor secretary, citing her handling of unemployment funding during the Covid-19 pandemic and her past support for a California law that requires companies to designate most workers as employees, not independent contractors.” (Politico, 7/07/2023)

33 REPUBLICAN SENATORS: “We write to urge you to formally withdraw the nomination of Julie A. Su, of California, to be Secretary of Labor…. In the past three months since she was nominated to be Secretary of Labor, Ms. Su has given senators no indication that her past positions and actions are not indicative of future positions and actions she would take as Secretary. She has avoided answering questions whenever possible and she has refrained from providing distinct specificity to her answers when she has responded to inquiries.” (33 Republican Senators, Letter to President Biden, 6/20/2023)

33 REPUBLICAN SENATORS: “[D]espite the Senate being in session for several weeks since [Ms. Su was reported by the HELP Committee on a party-line vote], there has yet to be a full vote in the Senate on this nomination. Her track record and unwillingness to provide clarity to her past positions and the actions she would take as Secretary of Labor continue to raise concerns about her nomination.” (33 Republican Senators, Letter to President Biden, 6/20/2023)

  • “In her capacity as the head of California’s Labor and Workforce Development Agency, Ms. Su was the architect of a law that forced independent contractors in the state to reclassify themselves as W-2 employees, and she did not hesitate to express her willingness to enforce this law, threatening investigations and audits to wage claim process for workers who did not comply. When asked about her position on this issue and if she would institute a similar policy as U.S. Secretary of Labor, Ms. Su has been consistently evasive in responding, despite offering strong public support for this policy prior to her current nomination.” (33 Republican Senators, Letter to President Biden, 6/20/2023)
  • “Ms. Su was further evasive to senators by failing to product requested documentation that showed she instructed her staff to hide individuals that were subject to investigations by U,S, Immigration Customs and Enforcement officials when she served as California State Labor Commissioner.” (33 Republican Senators, Letter to President Biden, 6/20/2023)
  • “Strong concerns from the small business community have also been expressed over Ms. Su’s approach to the current franchise business model, citing her support of California legislation that gave authority to government appointees to make decisions regarding wages and working conditions at independently owned restaurants across the state.” (33 Republican Senators, Letter to President Biden, 6/20/2023)


Amidst Bipartisan Opposition To Julie Su’s Nomination, Democrats STILL Don’t Have The Votes To Confirm Her

“Biden’s nominee to be Labor secretary, Julie Su, is an extreme long shot to be confirmed by the Senate. Su’s nomination faces unified Senate GOP opposition while several moderates on the Democratic side of the aisle won’t say whether they back her. Biden hasn’t given up on the nomination, yet there’s no momentum either — and no sense the White House can do anything to break the months-long deadlock.” (“Punchbowl News AM,” Punchbowl News, 7/05/2023)

“Nearly five months after Su was nominated, it remains unclear when — or whether — the chamber will hold a vote to confirm her.” (“Biden's Labor Secretary Pick May Not Have The Votes. She Also May Not Need Them,” NBC News, 7/13/2023)

POLITICO: ‘Manchin Opposes Julie Su For Labor Secretary, Jeopardizing Nomination’ (“Manchin Opposes Julie Su For Labor Secretary, Jeopardizing Nomination,” Politico, 7/13/2023)

SEN. JOE MANCHIN (D-WV): “I believe the person leading the U.S. Department of Labor should have the experience to collaboratively lead both labor and industry to forge compromises acceptable to both parties…. I have genuine concerns that Julie Su’s more progressive background prevents her from doing this and for that reason I cannot support her nomination to serve as Secretary of Labor.” (Sen. Manchin, Press Release, 7/13/2023)

  • “Democratic Sen. Joe Manchin does not plan to support President Joe Biden’s nominee for labor secretary and has solicited a list of alternate candidates, according to two sources with knowledge of the matter. Manchin’s opposition to nominee Julie Su could prove fatal if another senator who caucuses with Democrats also opposes her. After Manchin, D-W.Va., met … with Su he joined a call with the International Franchise Association, which opposes Su’s nomination because of her support for policies that the organization says ‘would dismantle the franchise business model.’” (“Manchin Seeks Alternatives To Biden Labor Secretary Nominee Julie Su,” NBC News, 5/19/2023)

Multiple Democrat Senators Still Won’t Say Whether They’ll Support Her Nomination, Suggesting They Don’t

The Biden administration is calling out Sens. Kyrsten Sinema and Joe Manchin over the nomination of Julie Su, a dramatic escalation in an effort to confirm a Secretary of Labor that has been stalled on Capitol Hill since February. A White House official on Thursday said President Joe Biden would continue to fight for Su’s confirmation, calling his support for her ‘unwavering.’ ‘We hope,’ the official added, ‘Senator Manchin and Senator Sinema reconsider their position.’” (“Manchin Opposes Julie Su For Labor Secretary, Jeopardizing Nomination,” Politico, 7/13/2023)

Jon Tester, who has not said how he will vote on Biden’s Labor pick of Julie Su, told me WH should pull her if she lacks support. ‘They should know the votes. And if in fact the votes aren’t there they should pull it and move on, unless they think they can move’ the nomination. Said he has not decided whether he will back her nomination. ‘I want to keep my options open until we have a vote in case new information comes in. That’s all,’ said Tester.” (CNN’s Manu Raju, @mkraju, Twitter, 6/07/2023)

  • SEN. JON TESTER (D-MT): “‘I’m still looking. Still taking input,’ Tester said before wondering if a vote will ever take place.” (The Hill, 6/07/2023)

There’s little political upside for a vulnerable incumbent to publicly support a nominee who may never get a vote. Tester said ‘I want to keep my options open until we have a vote’ on Su and Sen. Angus King (I-Maine) similarly demurred.’” (“The Surprising Corner Of The Senate That’s Sinking Biden Nominees,” Politico, 6/12/2023)


Yet The White House And Some Democrats Are Suggesting Su Be Allowed To Continue Serving In An Acting Capacity Without Senate Confirmation

“Republicans, who broadly oppose the former civil rights litigator’s nomination and have asked Biden to withdraw it, warn not to keep her on without full confirmation. ‘I would strongly object,’ said Sen. Bill Cassidy of Louisiana, the HELP panel’s top Republican. ‘It seems to defy advise and consent.’” (“Biden's Labor Secretary Pick May Not Have The Votes. She Also May Not Need Them,” NBC News, 7/13/2023)

SEN. CASSIDY: “On March 21, 2023, the Department of Labor (DOL) transmitted a submission to the Government Accountability Office (GAO) stating that Julie Su is serving as Acting Secretary of Labor, not under the Vacancies Act, but under 29 U.S.C. § 552, a DOL-agency succession statute which allows the Deputy Secretary to perform the duties of the Secretary of Labor…. 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.” (Sen. Cassidy, Letter to President Biden, 7/19/2023)

THE WALL STREET JOURNAL EDITORIAL BOARD: “The White House now argues a DOL succession law lets the deputy secretary perform the duties of the Secretary ‘until a successor is appointed.’ That would mean Ms. Su doesn’t need to be confirmed to the post. This is legally doubtful, as Louisiana Sen. Bill Cassidy explained in a letter to Mr. Biden on Wednesday…. The White House appears to be invoking the DOL succession law ‘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,’ Mr. Cassidy writes. The Federal Vacancies Reform Act was intended to prevent Presidents from doing what Mr. Biden is now doing.” (Editorial, “Biden to the Senate: So Su Me,” The Wall Street Journal, 7/19/2023)

White House Officials Seem Content To Keep Su On ‘As Acting Secretary Indefinitely – Even Without Senate Confirmation’

“[M]onths ago, [White House] officials determined Su could serve as acting secretary indefinitely — even without Senate confirmation. The twin determinations from team Biden — one political and one legal — will raise the temperature on Su’s confirmation, potentially complicating her path to winning 50 votes on the Senate floor.” (“Biden’s Forever Nominee,” Axios, 7/13/2023)

  • “When she took over from then-Secretary Marty Walsh in March, the Biden administration relied on a statute that would ensure that there was ‘no clock’ on her ability to serve as acting secretary of the department. ‘Because Acting Secretary Su has been nominated, there is no clock on how long she can serve,’ a Labor Department spokesperson told Axios.(“Biden’s Forever Nominee,” Axios, 7/13/2023)
  • “Biden is taking a page out of former President Trump's playbook by embracing the complicated laws around acting leadership positions to keep his preferred candidate running DOL indefinitely — even without Senate confirmation.” (“Biden’s Forever Nominee,” Axios, 7/13/2023)

“Senate Majority Leader Chuck Schumer, D-N.Y. … dodged reporters’ questions about whether Su should continue serving as acting labor secretary if she fails to get confirmed.” (“Biden's Labor Secretary Pick May Not Have The Votes. She Also May Not Need Them,” NBC News, 7/13/2023)

‘Some Democrats Want Su To Stay On As Acting Secretary Regardless Of Her Prospects For Confirmation’

“Some Democrats want Su to stay on as acting secretary regardless of her prospects for confirmation. … It is not clear what the administration would do if Su cannot be confirmed.” (“Manchin Opposes Julie Su For Labor Secretary, Jeopardizing Nomination,” Politico, 7/13/2023)

“In theory, the Democratic Senate can unilaterally confirm anyone with 50 votes and push nominations through committees with simple majorities. But that requires near-total party unity — which isn’t always easy to achieve on the Commerce Committee, other panels or the Senate floor. It’s a dynamic that could force President Joe Biden to keep acting officials in some top jobs, which former President Donald Trump took to extremes and elicited Democratic criticism. But the Biden administration, congressional Democrats and the nominees themselves are realizing some fights aren’t even worth having.” (“The Surprising Corner Of The Senate That’s Sinking Biden Nominees,” Politico, 6/12/2023)

“Some of Su’s Democratic supporters back her staying in the job as the acting head if she can’t get confirmed, while others refuse to entertain the idea, hopeful she’ll ultimately get Senate approval.” (“Biden's Labor Secretary Pick May Not Have The Votes. She Also May Not Need Them,” NBC News, 7/13/2023)

  • “[Sen. Bernie Sanders (I-VT)] says Julie Su should stay in her post as Acting Labor Secretary even if she doesn’t have enough votes for confirmation. ‘I hope she has the votes to become the secretary. If not, of course, she should stay where she is. She's doing a great job. Why would you not?’” (NBC’s Liz Brown-Kaiser, @lizbrownkaiser, Twitter, 7/11/2023)


FLASHBACK: Democrats Once Objected To Having Officials In Acting Capacities For Extended Periods Of Time

SEN. CHUCK SCHUMER (D-NY): “[T]he circumstances of Mr. Wolf’s nomination are also very strange. Wolf is not only already serving as an undersecretary in an acting capacity; President Trump has named him the incoming Secretary of DHS in an acting capacity. President Trump never bothered to nominate a replacement for departing DHS Secretary McAleenan, who left yesterday, so the Senate is being asked to confirm someone to a job they’re not even going to perform. Indeed, if Mr. Wolf is confirmed, we may never vote on who will be the actual Secretary of DHS, a major cabinet-level department. This is completely unacceptable…. Rather than work with Congress to find a DHS Secretary that we could support, the Trump Administration is trying a legal end-around that subverts our constitutional duty to advise and consent.” (Sen. Schumer, Remarks, 11/12/2019)

SEN. GARY PETERS (D-MI):This administration has abused vacancies to the detriment of the department. The president refused to nominate a leader of the DHS for more than 500 days, a move that was not only legally questionable but created chaos and confusion at the agency charged with addressing numerous threats to our national security…” (“Senate GOP Eases Wolf’s Path To Becoming Homeland Security Secretary,” Roll Call, 9/23/2020)

Sen. Christopher Coons (D-Del.) said Monday that the number of acting secretaries in President Trump’s Cabinet is ‘striking’ following the resignation of Kirstjen Nielsen at the Department of Homeland Security. ‘It’s striking how many of the secretaries of the largest departments of this government are acting at this point,’ Coons said on CNN’s ‘New Day.’” (“Senate Dem: Number Of Acting Secretaries In Trump Cabinet ‘Striking,’” The Hill, 4/08/2019)

SEN. TIM KAINE (D-VA):An acting is no substitute for a confirmed secretary, in terms of both the gravitas they gain within the organization once they're confirmed, and also the degree to which Congress can exercise oversight in that confirmation process. And it's almost like the president would rather have actings that he can kind of control, rather than have confirmed by the Senate Cabinet secretaries.” (Sen. Tim Kaine, PBS NewsHour, 6/18/2019)

SEN. CHRIS MURPHY (D-CT): “[W]hen you`re in an acting capacity, everyone wonders whether you`re going to be there for the long haul, and so, your influence is naturally diluted.” (Sen. Chris Murphy, The Rachel Maddow Show, 6/18/2019)

“Three Senate Democrats filed a federal lawsuit on Monday to block Matt Whitaker from serving as the acting U.S. attorney general, claiming that his appointment to the post by President Donald Trump was unconstitutional. In a suit filed in the U.S. District Court for the District of Columbia, Sens. Richard Blumenthal, D-Conn., Mazie Hirono, D-Hawaii, and Sheldon Whitehouse, D-R.I., alleged that Trump's appointment of Whitaker violates the Appointments Clause of the Constitution because Whitaker was never confirmed by the Senate to serve in any position ‘requiring the advice and consent of the Senate,’ which includes the job of attorney general.(“Senate Democrats File Suit Challenging Matt Whitaker's Appointment As Acting Attorney General,” NBC News, 11/19/2018)

17 SENATE DEMOCRATS: “ICE has been without a Senate-confirmed Director since the first day of the Trump Administration, more than 14 months…. [Tom] Homan has been performing the duties of ICE Director since January 30, 2017.  This potential violation of the Federal Vacancies Reform Act of 1998 raises serious questions … The absence of a Senate-confirmed head of ICE for more than a year hinders Congressional oversight and the efficient operation of the agency and is troubling in any circumstance…. [T]he Senate is an independent branch of government and has a responsibility under the Constitution to provide its advice and consent on this nomination.” (17 Senate Democrats, Letter to Secretary Nielsen, 4/27/2018)



Related Issues: Senate Democrats, Nominations, Labor