07/31/2023 10:00 AM EDT
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SUING SU: The fate of the Biden administration’s labor agenda will almost certainly be decided in court, it is just a matter of how.
Congressional Republicans and business groups like the Flex Association and Job Creators Network have grown increasingly vocal about their opposition to acting Labor Secretary Julie Su remaining in the position after it has become evident she stands little chance of being confirmed to officially succeed Marty Walsh, who left in March.
They have raised a number of constitutional concerns about Su’s continued service and whether the White House and Department of Labor are attempting an end run around the Senate’s “advice and consent” function. For its part DOL has held firm that Su is on firm ground and elevated her public presence in recent weeks.
Su sits in the center of a messy nexus of the Federal Vacancies Reform Act of 1998, an even older statute structuring DOL’s chain of command, the need for presidents to plug gaps in the executive branch with temporary leadership and the Schrödinger’s cat of a moribund nomination that is still (theoretically) a pending matter before the Senate.
Supreme Court Justice Clarence Thomas expressed “grave constitutional concerns” about appointing top officials outside of the Senate confirmation process in a 2017 labor issues case.
The end goal of any such challenge would be to invalidate actions taken by...
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