Ranking Member Cassidy, Britt, Colleagues Seek Answers on Biden Improperly Placing Julie Su in Presidential Line of Succession

WASHINGTON – Today, U.S. Senators Bill Cassidy, M.D. (R-LA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, Katie Britt (R-AL), and 28 Republican colleagues are seeking answers following President Biden’s decision to improperly elevate Acting Secretary of Labor Julie Su into the presidential line of succession. This comes as Julie Su’s nomination for Secretary of Labor has lasted for 218 days, the longest a cabinet-level nominee has waited for a floor vote when the same party controls the White House and the Senate.   

Although Ms. Su has failed to receive Senate confirmation amid bipartisan opposition to her nomination, the Biden administration is choosing to keep her in place as Acting Secretary of Labor on an indefinite basis and is now even listing her on the White House website as a member of the Cabinet “in order of succession to the presidency.” 

Article II, Section 1 of the Constitution vests in Congress the power to set the presidential line of succession beyond the Vice President. Congress established the current presidential line of succession in the Presidential Succession Act of 1947. The Act states that a Cabinet member is eligible to assume the presidency only if they are an officer “appointed, by and with the advice and consent of the Senate.” Ms. Su has failed to be appointed to her position as Secretary of Labor “by and with the advice and consent of the Senate.” 

The senators urged President Biden to provide clarity on how Ms. Su has become eligible for the presidential line of succession. Additionally, the senators call on the President to withdraw Ms. Su’s nomination and put forward a nominee who can garner enough bipartisan support to be confirmed to the position of Secretary of Labor. 

“While you and your Administration have clearly decided to ignore congressional intent in keeping Ms. Su in place in her current role, it would be unfortunate if you have decided to further discount congressional intent – and violate the law – by taking the position that Ms. Su is eligible for placement in the presidential line of succession,” wrote the senators. 

“It is unimaginable to think that this Administration believes someone who has neither been duly elected nor confirmed by the Senate to the position of Secretary of Labor could be President of the United States,” continued the senators. “Suggesting that Ms. Su is eligible to be in the presidential line of succession is antithetical to our system of governance and the bedrock principles on which our Republic rests.” 

Cassidy and Britt are joined by U.S. Senators Mitch McConnell (R-KY), John Barrasso (R-WY), Marsha Blackburn (R-TN), Mike Braun (R-IN), Ted Budd (R-NC), Shelley Moore Capito (R-WV), Susan Collins (R-ME), Tom Cotton (R-AR), Mike Crapo (R-ID), Joni Ernst (R-IA), Deb Fischer (R-NE), Lindsey Graham (R-SC), Bill Hagerty (R-TN), John Hoeven (R-ND), Ron Johnson (R-WI), John Kennedy (R-LA), James Lankford (R-OK), Mike Lee (R-UT), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Tim Scott (R-SC, John Thune (R-SD), Thom Tillis (R-NC), Roger Wicker (R-MS), and Todd Young (R-IN). 

Currently, Ms. Su is serving as Acting Secretary of Labor under the Department of Labor (DOL) succession statute, which according to the Government Accountability Office (GAO) allows her to serve as Acting Secretary in perpetuity even if she does not have votes for Senate confirmation. Last month, Cassidy introduced the Advice and Consent Act, which reins in the DOL succession statute and would prevent Ms. Su and future Secretary of Labor nominees from serving in an Acting Secretary capacity without the consent of the Senate past 210 days, the normal standard for all cabinet-level nominees under Federal Vacancies Reform Act. 

Read the full letter here or below. 

Dear Mr. President,

We write today to express grave concerns with your Administration’s apparent belief that Acting Secretary of Labor Julie Su is eligible to assume the office of President of the United States pursuant to the presidential line of succession as established by Congress in the Presidential Succession Act of 1947. 

As you are well aware, since March 14, 2023, the United States Senate has declined to confirm Ms. Su’s nomination as Secretary of Labor, and she continues to lack adequate support from both Republican and Democratic members of the Senate to be confirmed to that position. 

Despite that reality and Ms. Su becoming the longest-ever Cabinet nominee to await confirmation in a time when the same party controls the White House and the Senate, the White House has chosen to keep her in place as Acting Secretary of Labor on an indefinite basis and has also listed her on the White House website as a member of the Cabinet “[i]n order of succession to the Presidency.”  

While you and your Administration have clearly decided to ignore congressional intent in keeping Ms. Su in place in her current role, it would be unfortunate if you have decided to further discount congressional intent – and violate the law – by taking the position that Ms. Su is eligible for placement in the presidential line of succession.

While the Twenty Fifth Amendment to the U.S. Constitution states that the Vice President shall assume the presidency upon the removal from office, death, or resignation of the sitting President, Article II, Section 1, clause 6 of the Constitution vests in Congress the power to set the presidential line of succession beyond the Vice President.

Congress exercised that authority in passing the Presidential Succession Act of 1947, which established the current presidential line of succession. Specifically, 3 U.S.C. §19(d)(1) lists the members of the President’s Cabinet, including the Secretary of Labor, in the order in which they would succeed to the presidency, beginning with the Secretary of State and ending with the Secretary of Homeland Security.

However, 3 U.S.C. §19(e) further states that, with respect to Cabinet members, they are only eligible to be in the line of presidential succession and assume the office of President of the United States if they are an officer “appointed, by and with the advice and consent of the Senate.” 

As Ms. Su has failed to be “appointed, by and with the advice and consent of the Senate” as Secretary of Labor, we strongly urge the White House to clarify its position and views regarding Ms. Su’s eligibility for the presidential line of succession and, in the event it was to become necessary, to assume the presidency.

It is unimaginable to think that this Administration believes someone who has neither been duly elected nor confirmed by the Senate to the position of Secretary of Labor could be President of the United States.  Suggesting that Ms. Su is eligible to be in the presidential line of succession is antithetical to our system of governance and the bedrock principles on which our Republic rests.

Furthermore, as many of our Senate colleagues have done in the past, we once again call upon you to withdraw Ms. Su’s nomination and put forward a nominee for Secretary of Labor who is capable of garnering sufficient support on a bipartisan basis to be confirmed.

Sincerely,

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