Tipsheet

Julie Su Was Never Confirmed as Secretary of Labor, So How Is She in the Line of Succession?

Rebecca Downs
Rebecca Downs  |  October 18, 2023 5:00 PM

As Townhall has been covering for months, Acting Secretary of Labor Julie Su looked to have a particularly difficult time getting confirmed, and so the Biden administration decided not to have a vote at all. Instead, she'll remain as acting secretary, and the administration doesn't have to suffer through an embarrassing floor vote. The White House is looking to have it both ways, though, as Fox News reported that Su was quietly placed in number nine in the line of succession on the White House website.

In response, Sen. Katie Britt (R-AL) and 29 other Republican senators sent a letter to President Joe Biden on Tuesday demanding answers, as it begins by noting the senators write "to express grave concerns with your Administration’s apparent belief that Acting Secretary of Labor Julie Su is eligible to assume the office of President of the United States pursuant to the presidential line of succession as established by Congress in the Presidential Succession Act of 1947."

Not only has Su yet to have had a confirmation vote, it's been 218 days. The letter points out that Su is "the longest-ever Cabinet nominee to await confirmation in a time when the same party controls the White House and the Senate," with the White House having "chosen to keep her in place as Acting Secretary of Labor on an indefinite basis and has also listed her on the White House website as a member of the Cabinet “[i]n order of succession to the Presidency."

The senators don't mince words in their letter. Not only did they point out that Biden and his administration "have clearly decided to ignore congressional intent in keeping Ms. Su in place in her current role," they also highlight how "it would be unfortunate if you have decided to further discount congressional intent--and violate the law--by taking the position that Ms. Su is eligible for placement in the presidential line of succession."

The 25th Amendment creates a problem for Su being in the line of the succession, as "the power to set the presidential line of succession beyond the Vice President" is with Congress. As the letter explains further:

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Congress exercised that authority in passing the Presidential Succession Act of 1947, which established the current presidential line of succession. Specifically, 3 U.S.C. §19(d)(1) lists the members of the President’s Cabinet, including the Secretary of Labor, in the order in which they would succeed to the presidency, beginning with the Secretary of State and ending with the Secretary of Homeland Security.

However, 3 U.S.C. §19(e) further states that, with respect to Cabinet members, they are only eligible to be in the line of presidential succession and assume the office of President of the United States if they are an officer “appointed, by and with the advice and consent of the Senate.”

As Ms. Su has failed to be “appointed, by and with the advice and consent of the Senate” as Secretary of Labor, we strongly urge the White House to clarify its position and views regarding Ms. Su’s eligibility for the presidential line of succession and, in the event it was to become necessary, to assume the presidency.

Towards the end of the letter, the senators double down on their anger, writing how it's "unimaginable to think that this Administration believes someone who has neither been duly elected nor confirmed by the Senate to the position of Secretary of Labor could be President of the United States," adding that "[s]uggesting that Ms. Su is eligible to be in the presidential line of succession is antithetical to our system of governance and the bedrock principles on which our Republic rests."

In closing, the senators remind that many have already called on withdrawing Su's nomination, a call they once more repeated. 

It wasn't merely Republican senators who highlighted the egregious concerns of placing a non-confirmed cabinet member in the line of succession. "President Biden has displayed a shameful disregard for congressional intent throughout every step of Julie Su's failed nomination. To place someone like Su, who can't even win enough votes to lead the Labor Department, in the presidential line of succession is an absurd and unconstitutional abuse of power," Rachel Tripp, the Stand Against Su spokesperson said in a statement for Townhall.

The Stand Against Su coalition has raised concerns about her qualifications from the start. The coalition and other detractors have particularly raised concerns with her role in California's unemployment insurance fraud and the resulting higher taxes, and her support for California's AB 5 which forces independent contractors and freelancers to be treated as full-time workers. Before serving as the Deputy Secretary of Labor under then Secretary Marty Walsh, she served as the Secretary of the California Labor and Workforce Development Agency. 

One of the 30 senators included Oklahoma's Markwayne Mullin, who memorably questioned Su during her April committee hearing with the Senate Committee on Health, Education, Labor and Pensions (HELP). She couldn't even answer his basic questions, though she did confirm she has not had basic experience such as being an employer of a business, something Mullin has had.

In June, 33 Republican senators called for Biden to pull her nomination, especially as she refused to avail herself for questions from senators. Sen. Joe Manchin (D-WV) shared he would vote against her, and other vulnerable Democratic incumbents also up for reelection in 2024 had trouble taking a committed stance on her nomination.