Biden Backdoors Su, Opponents Threaten Legal Action
The ‘advice and consent’ clause is there for a reason – it’s to keep presidents from becoming dictators
Thanks again to the California Globe for running this piece. You can visit the website at: https://californiaglobe.com/
Note: I wrote a story that ran ysterday afternoon that I was just about to post when this news came through. I’ve added it at the bottom of this post - Can you say Nostradamus?
President Joe Biden has reportedly decided to keep Acting Secretary of Labor Julie Su as “acting” secretary despite the fact that she cannot manage to get through the Senate to get the job for real.
Sources have told both Reuters and Politico that Biden will keep her in the job, almost certainly until the 2024 election, no matter if the Senate confirms her or not.
This unprecedented move side-steps the normal Senate confirmation process that all cabinet secretaries – and many other federal officials – must go through and has Su’s detractors already threatening legal action.
“It’s no surprise Su is getting another hall pass from this administration,” said California Business and Industrial Alliance (CABIA) President Tom Manzo. “We will not let this go unchallenged and we are reviewing our legal options to keep Biden from skirting the Constitution in this blatantly improper decision. The ‘advice and consent’ clause is there for a reason – it’s to keep presidents from becoming dictators.”
California Rep. Kevin Kiley (R-Rocklin) sits on the House committee that oversees the Labor department. In light of the Biden move, he reminded the president that the department’s budget must through that committee.
“Biden couldn’t get the votes, so now he says a vote isn’t needed. The Constitution says otherwise,” Kiley said. “Congress controls the Labor Department’s funding. We will not let this lawlessness stand.”
If Su could get confirmed by the Senate – Biden nominated her four months ago- this issue would be moot. But since she cannot be sure of getting 50 yes votes (Vice President Harris would break the tie in her favor) not vote has even be scheduled.
The United States Constitution states the following:
“…by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
That being said, the current Su situation does have certain gray areas.
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.
A 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.
The Government Accountability Office was asked just 10 days ago by Rep. Virginia Foxx (R-N.C.) – chair of the House committee overseeing the labor department – to determine which law took precedence as they seem to be in conflict.
The GAO said Monday they have begun actively investigating the issue; whether or not today’s Biden move is an attempt to cut off that investigation at the knees and/or to put Su in place before it issues a finding is unknown.
Biden will apparently not formally withdraw Su’s nomination, nor will he nominate someone else, allowing – the administration claims – Su to continue to serve despite the constitutional rights and duties of the Senate being ignored.
“The administration seems to be driving a semi-truck through a legal loophole by keeping Julie Su in an acting role despite bipartisan opposition in the U.S. Senate,” said George O’Connor, spokesman for the Owner-Operator Independent Drivers Association (OOIDA), a national self-employed trucker organization. “It’s clear she doesn’t have the votes to be confirmed and her nomination should be pulled.”
O’Connor said his group, like CABIA, is weighing “all options” going forward.
The OOIDA is one of many business groups opposing Su for her zealous enforcement and support of California’s AB 5 anti-freelancer law.
Despite her protestations to the contrary, it is widely suspected that Su will attempt to shoehorn similar regulations into federal law. The PRO Act, which big labor supports and roughly copies California’s AB-5 at a federal level, has failed in Congress at least twice.
There are reportedly a number of new regulations that have been delayed by the uncertainty over Su. It can be expected now that they will be put into place as quickly as possible, as anything Su does after her 210 time-limit could be deemed unlawful if she in fact is not allowed to serve indefinitely as Biden claims.
Su’s nomination has also been opposed by, well, anyone aware of her tenure as California’s labor secretary during which she sat by and do nothing until it was far too late as $40 billion was pillaged from the EDD - https://thomas699.substack.com/p/you-would-think-losing-40-billion during the pandemic.
“There are more than 40 billion reasons she should not be labor secretary,” Manzo said.
The StandAgainstSu - https://standagainstsu.com/ - advocacy group has fought her confirmation since it was announced in February and was none too pleased by the latest twist in the Su saga.
Said group spokeswoman Rachel Tripp: "After five months of failed confirmation attempts, President Biden does not want to face the truth - that Julie Su is unfit to be Secretary of Labor. Deferring a vote not only makes a mockery of the nomination process, but is also a pathetic attempt to claim victory in a fight that he knows cannot be won through legitimate means.”
And the previous story….
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 https://thomas699.substack.com/p/you-would-think-losing-40-billion .
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 and
“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.