WASHINGTON — The White House plans to use a little-known law to keep Acting Secretary of Labor Julie Su in the job even if she doesn’t win Senate approval, a White House official told NBC News.
“Following Secretary Walsh’s departure, Acting Secretary Su automatically became Acting Secretary under his organic charter, not under the Federal Vacancies Reform Act,” the White House official said in an email, referring to Marty Walsh, who resigned in March. «As a result, Su is not subject to the time limits of the Federal Vacancies Reform Act and can serve as Acting Secretary indefinitely.»
Last week, NBC News reported that a law dating back to 1946 allows the deputy secretary of labor, whom Su was confirmed by the Senate in 2021, “to perform the duties of secretary until a successor is named.”
But Su’s nomination for labor secretary has since stalled in the Senate, where Democrats control 51 votes and hope for a unified Republican opposition.
After Sen. Joe Manchin, DW.Va., came out against him, the White House asked him and Sen. Kyrsten Sinema, I-Ariz., who has not taken a public position, to «reconsider» their positions, implying that she, too, opposes Sun’s nomination.
The White House decision reflects an attempt to navigate a politically thorny situation as President Joe Biden accelerates his 2024 re-election campaign.
Labor leaders and unions strongly support Su, and Biden has vowed to be «the most pro-union president» in American history. Replacing her with a more pro-business candidate seeking Senate approval risks turning off a key constituency without many obvious political advantages.
«The President’s support for Acting Secretary Su is unwavering,» the White House official said.
In April, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 11 to 10 in favor of Su’s nomination, but there has been no action in the Senate since.
Republican senators have already denounced the White House’s attempts to keep Su in his post. calling criticism of the nominee in a confirmation battle that has lasted several months.
The top Republican on the Senate HELP Committee, Sen. Bill Cassidy of Louisiana, called on Biden on Thursday to formally withdraw his nomination, citing a record delay in Su’s confirmation and legal questions about keeping her in office without formal Senate approval.
“In my opinion, this use of the Probate Act violates the constitutional provision for advice and consent and would potentially open any DOL action under the leadership of Julie Su to legal challenges,” Cassidy wrote in a letter to Biden, using an abbreviation for Department of Labor.
«If your administration believes that Ms. Su cannot receive the necessary votes for confirmation, then it should rescind her nomination,» he added. «Any attempt to circumvent the will of Congress, especially its constitutionally mandated advisory and consent role, is unacceptable.»
House Speaker Kevin McCarthy, R-Calif., echoed Cassidy’s calls, writing in a tweet: “It is clear that the only way forward is for President Biden to withdraw his nomination.”
Senate Minority Leader Mitch McConnell, R-Ky., also noted on the chamber Thursday that Su’s nomination has spent nearly five months «in limbo as Senate Democrats decide if they can even muster a party-line confirmation vote.»
He added: “American taxpayers have seen enough of Julie Su. When will the Senate Democrats finally decide that they have, too?
A Democratic Senate aide involved in the debate pushed back against criticism from the GOP, saying it is «very clear in the language» of the law that Su can stay «while his nomination is pending.»
«More importantly, when the Senate confirmed Su as Assistant Secretary for Labor just two years ago, they literally gave her a legal duty to serve as Acting Secretary of Labor when the secretary resigns until a new secretary is confirmed,» the aide said.
Keeping federal agency officials on the job in an interim capacity has precedent. Former President Donald Trump kept many heads of departments and agencies in charge despite the lack of Senate approval.
At his weekly news conference Wednesday, Senate Majority Leader Chuck Schumer, DN.Y., did not say whether he would support Su pursuing an acting role if he does not have the votes.
“Look, we think she’s a strong candidate,” he said. «We’re trying to do everything we can to get her through, plain and simple.»