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Julie Su's position hits Constitutional snag

The Senate’s Julie Su conundrum

Acting Labor Secretary Julie Su is scheduled to appear before the Senate Appropriations Committee this morning, where she’ll discuss President Joe Biden’s FY2025 budget request for the Labor Department.

Yet hanging over Su’s testimony is the fact that she still lacks the requisite Senate votes for confirmation to the post — and Democratic leaders have no plans to hold a vote they know will fail. Meanwhile, Su continues to run the department.

We spoke with GOP and Democratic senators alike who worry that keeping Su in the post even though she can’t be confirmed sets a dangerous precedent that weakens the Senate’s constitutional duty to provide advice and consent on nominations.

“Whatever was done by the other party in the previous Congress now becomes the norm… in the next Congress,” said Sen. Bill Cassidy (R-La.), who could become chair of the Senate Health, Labor, Education and Pensions Committee if the GOP wins the majority. “We’re really playing fast and furious with the United States Constitution.”

It was nearly a year ago that Sen. Joe Manchin (D-W.Va.) announced his opposition to Su as Labor secretary over policy disagreements.

“Why have a confirmation process if you’re not going to adhere to it?” Manchin said on Wednesday. “It could be her or anybody else. It’s not her as a person, trust me, OK? But they should work hard… to get one or two Republicans.”

Sen. Jon Tester (D-Mont.), who won’t reveal which way he’d vote on Su unless a vote were to be scheduled, said it’s time for the Senate to have its say.

“We ought to get her confirmed or not, one or the other,” Tester told us.

There are some nuances with Su’s nomination that are worth pointing out.

Su, a former top California labor official, was confirmed by the Senate to be deputy Labor secretary in July 2021 in a highly contentious vote (we’ll note that Manchin backed her). President Joe Biden nominated her in February 2023 to succeed Marty Walsh as secretary.

But due to unanimous GOP opposition, Manchin’s announcement and questions about how other senators may vote — especially Sen. Kyrsten Sinema (I-Ariz.) — Senate Democrats never brought Su up for a floor vote. The nomination expired at the end of the first session of the 118th Congress.

However, Biden renominated her for the Labor post in January. The HELP Committee again cleared Su’s nomination in February, yet she remains in nomination limbo. Democrats won’t bring Su’s nomination up because there’s a strong chance she would lose. And since Su is already doing the job anyway, why take the risk?

The Government Accountability Office found that Su’s appointment doesn’t violate federal law because an existing statute allows her to “perform the duties of the Secretary until a successor is appointed.”

Republicans countered that the GAO report doesn’t include a review of whether the use of the statute in question violates the Constitution’s advice and consent clause.

“It’s not [Democrats], it’s that the Republicans don’t want to confirm her,” said Sen. Bernie Sanders (I-Vt.), who chairs the HELP Committee. “She’s doing a great job, in my view.”

— Andrew Desiderio and John Bresnahan

Presented by The Coalition to Project American Jobs

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