WASHINGTON — The White House plans to use a little-known law to keep acting Labor Secretary Julie Su in the job even if she fails to win Senate approval, a White House official told NBC News.
“Upon Secretary Walsh’s departure, Acting Secretary Su automatically became Acting Secretary under its organic statute, not under the Federal Vacancies Reform Act,” the White House official said in an email, referring to Marty Walsh, who stepped down in March. “As a result, Su is not subject to the time limits of the Federal Vacancies Reform Act and she can serve as Acting Secretary indefinitely.”
Last week, NBC News reported that a law dating back to 1946 allows the deputy labor secretary, to which Su was confirmed by the Senate in 2021, to “perform the duties of the Secretary until a successor is appointed.”
But Su’s nomination for labor secretary has since stalled in the Senate, where Democrats control 51 votes and expect unified Republican opposition.
After Sen. Joe Manchin, D-W.Va., came out against her, the White House called on him and Sen. Kyrsten Sinema, I-Ariz., who hasn’t publicly taken a stance, to “reconsider” their positions, implying that she also opposes the Su nomination.
The White House’s decision reflects an attempt to navigate a politically thorny situation as President Joe Biden ramps up his 2024 re-election campaign.
Labor leaders and unions strongly support Su, and Biden has promised to be “the most pro-union president” in American history. Replacing her with a more corporate-friendly nominee in pursuit of winning Senate approval risks turning off a key constituency without much obvious political upside.
“The President’s support for Acting Secretary Su is unwavering,” the White House official said.
In April, the Senate Health, Education, Labor and Pensions (HELP) Committee voted 11-10 along party lines to advance Su's nomination, but there hasn’t been any Senate action since then.
GOP senators have already denounced attempts for the White House to keep Su in her post, dialing up 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 her nomination, citing a record-breaking delay in confirming Su and legal questions about keeping her in the position without formal Senate approval.
“It is my view that this use of the Succession Act violates the constitutional provision of advice and consent and would potentially open any DOL action under Julie Su’s leadership to legal challenges,” Cassidy wrote in a letter to Biden, using an abbreviation for Department of Labor.
“If your administration believes Ms. Su cannot receive the necessary votes for confirmation, then you should rescind her nomination,” he added. “Any attempts to bypass the will of Congress, especially its constitutionally mandated advice and consent role, is unacceptable.”
House Speaker Kevin McCarthy, R-Calif., echoed Cassidy’s calls, writing in a tweet: “It’s clear the only way forward is for President Biden to withdraw her nomination.”
Senate Minority Leader Mitch McConnell, R-Ky., also pointed out on the chamber floor Thursday that Su’s nomination has spent nearly five months “in limbo while Senate Democrats decide whether they can even muster a party-line confirmation vote.”
He added, “American taxpayers have seen enough of Julie Su. When will Senate Democrats finally decide that they have, too?”
A Senate Democratic aide involved in the debate pushed back on the GOP criticisms, saying it is "very clear in the language" of the law that Su can stay on "as long as her nomination is pending."
"More importantly, when the Senate confirmed Su to be Deputy Secretary of 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 acting capacity has precedent. Former President Donald Trump kept many department and agency heads in charge despite a lack of Senate approval.
At his weekly press conference on Wednesday, Senate Majority Leader Chuck Schumer, D-N.Y., did not say whether he’d support Su staying on in an acting role if she lacks the votes.
“Look, we believe she is a strong nominee,” he said. “We’re trying to do everything we can to get her passed, plain and simple.”