Ranking Member Cassidy Calls on Biden to Withdraw Su Nomination Amid Record-Breaking Delay
WASHINGTON – Today, U.S. Senator Bill Cassidy, M.D. (R-LA), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, called on President Biden to withdraw his nomination of Julie Su to be the U.S. Secretary of Labor. Su has failed to secure the 50 Senate votes needed for confirmation with every Republican opposing her nomination. The over 126 days that have elapsed since Su’s nomination is the longest for a cabinet-level nominee in a time when the same party controls the White House and the Senate. The record was previously held by John Bryson, Secretary of Commerce under President Obama.
The Vacancies Act, which creates “a clear and exclusive process to govern the performance of duties of offices in the Executive Branch” sets a time limit of 210 days that an individual can perform the role of a Cabinet level position without Senate confirmation. However, on March 21, 2023, Biden’s Labor Department transmitted a submission to the Government Accountability Office (GAO) stating that 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.
Since the DOL succession statute does not have a time limit, this creates the perception that DOL’s decision to utilize its authority under 29 U.S.C. § 552 is an attempt to protect Su’s ability to serve as Acting Secretary in perpetuity, even if she is unable to secure the votes required for Senate confirmation.
“If your administration believes Ms. Su cannot receive the necessary votes for confirmation, then you should rescind her nomination,” wrote Dr. Cassidy.
“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,” continued Dr. Cassidy. “Any attempts to bypass the will of Congress, especially its constitutionally mandated advice and consent role, is unacceptable.”
Read the full letter here or below.
Dear President Biden:
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.[1]
The intent of the Vacancies Act is “to create a clear and exclusive process to govern the performance of duties of offices in the Executive Branch” and to prevent the President from appointing unelected bureaucrats to roles that require the advice and consent of the Senate.[2] The Vacancies Act also places limits on the amount of time—210 days—that an advice and consent position may be filled by an acting officer.[3] Congress enacted this time limitation to incentivize the President to submit nominations in a timely manner, but also to give the Senate ample opportunity to complete its constitutional mandate.[4] Unlike the Vacancies Act, however, the DOL-agency succession statute does not prescribe a time limit on Ms. Su’s ability to perform the duties of Acting Secretary.
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.
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.[5] If your administration believes Ms. Su cannot receive the necessary votes for confirmation, then you should rescind her nomination. Any attempts to bypass the will of Congress, especially its constitutionally mandated advice and consent role, is unacceptable.
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