GAO affirms legality of Su’s role

Julie Su can continue to lead the U.S. Department of Labor even though she doesn’t appear to have the votes for confirmation.

That’s according to the U.S. Government Accountability Office.

In a decision released on Sept. 21, the GAO said that the Federal Vacancies Reform Act of 1998 does not apply to Su’s role as acting secretary.

“As the deputy secretary of labor, Ms. Su may serve as acting secretary … until a successor is appointed,” wrote Edda Emmanuelli Perez, general counsel for the GAO. “The Vacancies Act’s time limitations do not apply to her service.”

Not confirmed

Su remains the acting leader of the DOL despite appearing to lack the votes for confirmation in the Senate.

President Joe Biden picked Su – formerly California’s labor commissioner – in February to replace Marty Walsh as acting labor secretary. Her confirmation hearing was in April, but her nomination still hasn’t been brought up for a vote.

Sen. Joe Manchin, D-W.Va., announced in July that he planned to vote against Su, signaling that her confirmation bid would fail. Soon after, however, several media outlets reported that the White House planned to keep Su in her acting role without calling a vote.

Su’s opponents point to her tenure in California and her role in the implementation of Assembly Bill 5 – a controversial state law that makes it extremely difficult for a worker to be considered an independent contractor.

Rep. Kevin Kiley, R-Calif., called Su “the worst choice the president could have possibly made.”

“Her tenure was one of the worst tenures I’m sure there has ever been for any such position in our country’s history,” Kiley told Land Line Now in March. “She completely failed to run the unemployment office in California in a way that gave people the benefits that they were entitled to when millions of people lost their jobs because of the COVID shutdowns. You had millions of people who got their checks late or had to wait weeks or months, or in some cases, indefinitely.”

The Owner-Operator Independent Drivers Association was quick to oppose Su’s nomination.

“We are concerned that Ms. Su would continue to pursue an ideologically motivated agenda toward worker classification that ignores the thousands of small-business truckers who depend on the ability to work as an independent contractor,” OOIDA wrote in March. “Make no mistake, if Ms. Su were to advance the same policies that she championed in California, it would force hundreds of thousands of truckers to change their business model and put their livelihood in jeopardy.”

GAO review

Rep. Virginia Foxx, R-N.C., asked the GAO in August to review Su’s ability to continue leading the Department of Labor in an acting capacity. The requested review focused on whether Su was subject to the Vacancies Act’s time limits for acting officials.

The GAO report said that the Vacancies Act is the exclusive means for an acting official to serve in a vacant executive branch position that requires presidential appointment and Senate confirmation. Su’s situation is different because a provision in the U.S. Code allows the deputy secretary to perform the secretary’s duties until a successor is appointed, the GAO concluded.

“Therefore, the Vacancies Act’s time limitations on acting service do not apply to the acting secretary’s service,” Perez wrote in the decision.

Kiley recently introduced a bill that aims to apply the requirements of the Vacancies Act to the current vacancy in the DOL. As of press time in early October, the bill had two co-sponsors. LL