Su’s Acting Role Called Unconstitutional in New Legal Threats

Business groups are gearing up to bring constitutional challenges to President Joe Biden’s decision to let Julie Su head the US Department of Labor without Senate confirmation, escalating legal threats against the agency’s agenda under her acting leadership.

The app-based trade association Flex, which represents Uber Technologies Inc., Lyft Inc., and DoorDash Inc., recently warned the White House that any action taken to finalize the DOL’s highly anticipated worker classification rule “would circumvent the Senate’s constitutional role of providing advice and consent on nominees.”

The group’s concerns echo claims made in recent weeks by Republicans who say the decision to keep Su as acting secretary of labor, despite not having the votes to confirm her, raises constitutional questions and is an end run around the Senate.

The letter is the latest indication that the constitutional argument against Su’s acting status is gaining traction within the business community, suggesting a budding effort to sue over any work she authorizes in an acting capacity.

The Job Creators Network Foundation “shares concerns raised by Sen. Cassidy and other Members of Congress regarding the legality of Julie Su’s longtime position as Acting Secretary of the Labor Department,” said Alfredo Ortiz, the group’s president and CEO.

The foundation was previously part of a successful lawsuit against the DOL’s vaccine or test rule for private businesses that landed before the Supreme Court.

“Attempting to keep Su in power without Senate confirmation is just the latest example of executive overreach by the Biden administration,” Ortiz said in a statement. “JCNF is currently evaluating its options on the best way to hold the administration accountable.”

Organic Statute

The Biden administration has maintained “unwavering” support for Su despite admitting earlier this month that both Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (I-Ariz.) would vote against the nomination—a sign that confirmation chances are doomed.

Even so, the White House and Su herself maintain that she is allowed to remain as leader of the agency indefinitely under the line of succession set out in the 1913 law establishing the DOL.

“I think what you know, what we’ve seen, in the time that I’ve been here is it does not limit me,” Su said in an interview with Bloomberg News. “I am so honored to have the president’s unwavering support. He has said that I am his labor secretary, and will remain in this position and I’m really honored to be doing that job.”

Republicans disagree.

GOP members of both the House and Senate sent letters to Biden and the Government Accountability Office earlier this month suggesting that Su should be serving instead under the Federal Vacancies Reform Act. The law governs most executive vacancies and sets time limits on how long officials can serve in an “acting” capacity.

“By skirting around the Senate’s confirmation process and attempting to install Julie Su as the de facto Secretary of Labor, President Biden is using the Constitution as his own personal doormat,” House Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.) said in a statement. “The President believes he can operate with impunity and blight the Constitution – it is truly disturbing.”

The claim that the White House and Su are violating the Constitution infuriated some of Su’s ardent defenders on Capitol Hill, who insist that Su legally may serve in an acting capacity until the end of next year.

“As usual, they are misinformed, they’re wrong,” said Sen. Mazie Hirono (D-Hawaii), who for months has been lobbying her Senate colleagues to vote for Su. “She can continue on until the end of the term. There are circumstances in which that would not be the case, but in her case, she can do that.”

Constitutional Violation?

Whether a challenge to Su’s acting authority would make its way to the US Supreme Court is unclear.

But at least one conservative justice has signaled his willingness to review the legality of the president installing nominees outside of the confirmation process.

In National Labor Relations Board v. Southwest General Inc., Justice Clarence Thomas wrote in concurrence that the FVRA raises “grave constitutional concerns” because the Appointments Clause only allows the president to appoint officers with the advice and consent of the Senate.

The Biden administration argues that Su is serving legally under the statute that created the DOL—not the FVRA. But Thomas’ concurrence reflects the constitutional claims businesses and Republicans are lodging against the DOL statute as well.

“Justice Thomas makes an interesting point suggesting there is a constitutional issue which needs to be resolved in a proper case,” said Michael Lotito, co-chair of the Workplace Policy Institute at the management law firm Littler Mendelson PC. “The situation involving Labor Secretary Nominee Su may be that case.”

Some legal scholars remain skeptical about that argument because Su has been confirmed by the Senate to her current position of deputy secretary.

“Southwest General involved an acting official who was not confirmed to any position, under the FVRA,” said Anne Joseph O’Connell, a professor at Stanford Law School. “Su has been confirmed to a position and is not operating under the FVRA. Her confirmation matters in the analysis.”

Constitutional issues are more likely to arise if the person leading an agency hasn’t been confirmed by the Senate at all, she explained.

“Carrying out the duties of the Secretary position when it is vacant is a ‘germane’ duty to her confirmed position,” O’Connell said. “The legal situation is trickier when a non-confirmed official carries out a top agency position for a long time.”

Recess Appointment Unlikely

Biden also has the option to install Su as secretary of labor via recess appointment.

Such a move wouldn’t be unprecedented. Both former presidents Bill Clinton and George W. Bush used recess appointments for cabinet-level positions.

But the logistics make a Su recess appointment nearly impossible.

Congress must be adjourned for at least 10 days in order for the president to make a recess appointment, said Faith Williams, director of the effective and accountable government program at the Project on Government Oversight.

And the Senate would need approval from the Republican-controlled House to recess for more than three days.

“Practically speaking, I don’t think there will be an opportunity where recess is happening for 10 days without a pro forma session,” Williams said. Congress is likely to avoid the situation “to prevent recess appointments in general” she said. “I don’t think practically there’s much of a window to do it.”

— With assistance from Laura Curtis (Bloomberg)