Sen. Joe Manchin (D-WV) became the grim reaper for acting Labor Secretary Julie Su. The West Virginia Democrat delivered the kiss of death to her confirmation when he announced earlier this month that he’d be a “no” vote. With Democrats having a razor-thin majority in the Senate, one more vote would sink Su’s nomination. Sens. Mark Kelly (D-AZ) and Kyrsten Sinema (I-AZ) were mum about Ms. Su. Sinema is also another name that has bucked the party line, so much so that she decided to leave the Democratic Party and become an independent, providing for a contentious race in the Copper State in 2024.
Su had been leading the Labor Department in an acting capacity since the departure of the previous secretary, Marty Walsh, who resigned in early 2023 to become the executive director of the National Hockey League Players' Association. Biden nominated her to helm the department officially but has faced intense opposition. Her anti-business stance notwithstanding, her tenure as the head of the California Labor and Workforce Development Agency wasn’t exactly exemplary. Su wasn’t hell on wheels regarding some fraud, and by that, I mean $32.6 billion in phony unemployment and benefit claims.
NBC confirms that Labor Secretary nominee Julie Su's testimony that she immediately acted to prevent the EDD fraud isn't accurate.
— Rep. Kevin Kiley (@RepKiley) April 21, 2023
Su's EDD lost an estimated $32.6 billion in taxpayer dollars to fraudulent claims, twice the entire annual budget of the Department of Labor. https://t.co/exVAY3ZJis
Fact check: True https://t.co/Q2ETpuLxNW
— Ken Dilanian (@KenDilanianNBC) April 21, 2023
The district attorney of Sacramento County called the EDD’s response to the fraud ‘‘slow and nonexistent’’
— Rep. Kevin Kiley (@RepKiley) April 20, 2023
Biden has kept Su on as acting labor secretary indefinitely to avoid a fight in the Senate that could end with an embarrassing defeat. Unlike other positions outlined in the Vacancies Act, a deputy labor secretary can act until a successor is confirmed. There’s no end date, a special carveout for this cabinet position. In the meantime, it’s now official: Biden knows he doesn’t have the votes for Su (via Politico):
The Biden administration is ready to move on from Julie Su’s nearly five-month confirmation battle, looking instead to indefinitely leave her in the role as acting Labor secretary, according to two people familiar with the discussions.
The decision comes after a White House official last week publicly urged two senators who caucus with the Democrats to reconsider their position on Su. Though the White House is keeping the door open for a change in circumstances, internally there is little expectation that Sen. Joe Manchin (D-W.Va.) will reverse his public opposition or that Sen. Kyrsten Sinema (I-Ariz.) — who has not publicly declared a position — will support Su, according to the two people familiar with the talks. And so, the president and his team are set to move forward in defiance of the Senate confirmation process. It amounts to an implicit admission that the first Cabinet-level official to be replaced in the Biden administration lacks the votes.
The White House feels emboldened to keep Su in the role by a Labor Department rule that allows a deputy to serve in an acting capacity indefinitely, unlike other nominees who are subject to a time limit by a federal vacancies rule.
President Joe Biden still supports Su’s nomination and senior administration officials believe she has done well in the role. Chief of staff Jeff Zients and legislative director Louisa Terrell plan to remain in touch with Senate Democrats if the vote prospect changes, according to a person familiar with their plans.
“She’s doing a great job so I’m not in a hurry to get her confirmed at this point,” said Sen. Tammy Duckworth (D-Ill.), who has worked with the White House to support Su and advocated for having Asian Americans in the Cabinet. “She’s doing the job. She’s more than qualified. She’s been Senate-confirmed once, so just let her continue doing the job.”
The administration’s decision is already facing pushback from Republicans — and could be the basis of legal challenges of any Labor Department regulations issued in Su’s tenure.
There’s something off about this. She’s not a legitimate labor secretary if her boss feels she doesn’t have the votes. Most would see that as a sign to find a new nominee who is Senate confirmable. Biden’s work-around is not how recess appointments or acting administrative roles should play out. These are stopgaps to finding replacements; one would argue these are not the norms.
Did Biden steal a labor secretary position? I’ll leave that for you to debate, but there is an aura of illegitimacy here.
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