Joe Biden is at it again, overstepping his bounds to usurp a power expressly delegated by the Constitution to the Senate of the United States – the power to advise and consent to the appointment of senior executive branch officials.
Referring to the president’s power to nominate, and the Senate’s authority to confirm, Article II, Section 2 of the Constitution – the Appointments Clause – is clear: “He shall nominate, and 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 … “
The Senate’s role is a crucial check on presidential authority, one of the Framers’ keys to preventing tyranny. Alexander Hamilton wrote in Federalist 76 that the Senate’s power to advise and consent “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connections, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”
Without the Senate’s power to advise and consent (and, by implication, its power to reject), presidential authority to appoint officers could lead to tyranny.
At issue today is the service of Julie Su, Biden’s choice to replace Marty Walsh as Secretary of Labor. Nominated on February 28, Su – who previously was confirmed by the Senate to serve as the Deputy Secretary of Labor, the No. 2 position at the department – began serving as the Acting Secretary two weeks later, on March 11.
Because she was already serving as Deputy Secretary of Labor, no one raised an eyebrow when it was announced she would serve as Acting Secretary while she awaited the Senate vote to confirm her promotion.
That vote has not yet occurred, because Majority Leader Chuck Schumer – who has the responsibility, ultimately, for getting Biden’s nominees confirmed – does not believe Su can win a confirmation vote. West Virginia Democrat Joe Manchin has announced his opposition to Su’s confirmation, and the White House seems convinced that Arizona Independent Kyrsten Sinema is also a “no” vote on Su.
There’s a reason she cannot get confirmed – she’s a radical extremist. She’s an advocate for the Big Labor-backed PRO Act, which would overturn right-to-work laws in 27 states, and she wants gig economy workers to be classified as employees rather than independent contractors. Further, in her previous job as California’s Secretary of Labor and Workforce Development, she oversaw the largest case of unemployment insurance fraud ($40 billion!) in American history.
It’s been more than 133 days now since Su’s nomination was transmitted to the Senate. According to Louisiana Republican Sen. Bill Cassidy, the ranking member of the Senate HELP Committee, the committee of jurisdiction, that’s longer than any previous cabinet nominee has waited for a floor vote when the Senate and the White House were controlled by the same political party.
Here’s the catch – it turns out the Biden administration didn’t authorize Su to begin her service as Acting Secretary under the authority of the federal Vacancies Reform Act (VRA), a 1998 law that governs the filling of vacancies in senior executive branch positions. Instead, the Department of Labor submitted paperwork to the Government Accountability Office (GAO) declaring that Su would serve as Acting Secretary of Labor under the authority of 29 U.S.C. § 552, a Department of Labor agency succession law that allows the Deputy Secretary to perform the duties of the Secretary of Labor.
What difference does it make? Quite a big difference, in fact. Under the VRA, an official can serve in an “acting” capacity for no more than 210 days; under the DOL succession statute, on the other hand, there is no time limit – the law simply says, “The Deputy Secretary shall … perform the duties of the Secretary until a successor is appointed … “
In other words, Team Biden would have you believe that a 1946 agency-specific law, enacted in the wake of the departure of legendary Labor Secretary Frances Perkins, allows Su to serve as Acting Secretary of Labor indefinitely, irrespective of whether or not the Senate votes to confirm her to that position.
Congress has noticed.
House Education and the Workforce Committee Chairwoman Virginia Foxx, Republican of North Carolina, wrote weeks ago to the U.S. Comptroller General at the GAO to inquire about the legality of Su’s ability to serve as Acting Secretary for a prolonged period. Foxx noted the conflict between the two laws and asked the GAO what legal authority governs Su’s service, and asked specifically, “Are there time limitations on Ms. Su’s acting service, and if so, what are those limitations?”
On the Senate side, Cassidy, too, is all over it. As the ranking member of the committee of jurisdiction, he wrote directly to Biden on July 19, challenging him: “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 advise and consent role, is unacceptable.”
Unacceptable, indeed – and not a bad one-word answer to the question, “What do you think of the Biden Administration?”
Jenny Beth Martin is Honorary Chairman of Tea Party Patriots Action.