Julie Su’s Status as Acting Labor Secretary Is Legal, GAO Says

An independent federal watchdog says Julie Su can serve indefinitely as acting head of the US Department of Labor, despite months of accusations from Republicans that her status as the temporary leader of the agency is unconstitutional.

In its Sept. 21 decision, the Government Accountability Office cleared up legal questions clouding Su’s tenure atop the agency, determining that she can stay in her role because of the line of succession set out in the original law establishing the department.

House Education and the Workforce Committee Chair Rep. Virginia Foxx (R-N.C.)had requested that GAO probe whether Su should be subject to the time limits for “acting” officials laid out under the Federal Vacancies Reform Act, after Su’s nomination to serve permanently as labor secretary stalled out in the Senate earlier this year.

“As the Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary under section 552 until a successor is appointed,” GAO General Counsel Edda Emmanuelli Perez wrote in the decision. “The Vacancies Act’s time limitations do not apply to her service.”

In addition, Perez noted that the law essentially permits Su to hold the position of acting secretary indefinitely in this situation, since Su is unable to win Senate confirmation and because the Biden administration wouldn’t offer up a new nominee for the position.

“If Ms. Su continues to serve as Acting Secretary pursuant to section 552, she may continue to serve in that position until a successor is appointed,” Perez wrote.

The GAO’s findings are a win for the Biden administration and give the agency the green light to keep Su as leader of the DOL at least until the end of Biden’s first term, despite not having the votes in the Senate to confirm her following the exit of previous Labor Secretary Marty Walsh.

It also throws cold water on threats from Republicans and business groups that any actions Su may take as acting leader could be subject to legal challenge.