Acting Labor Secretary Julie Su faces a meritless argument from business groups and Senate Republicans that her service is unlawful. Here: Su speaks during a Senate Health, Education, Labor and Pensions confirmation hearing on Capitol Hill, April 20, 2023, in Washington. (AP Photo/Alex Brandon, File)

Acting Labor Secretary Julie Su faces a meritless argument from business groups and Senate Republicans that her service is unlawful. While their arguments are unpersuasive, the administration’s attempts to ensure the continuity of the department’s leadership are sound. 

In a July letter to President Joe Biden, Senator Bill Cassidy, the Louisiana Republican and ranking minority member of the Senate Committee on Health, Education, Labor, and Pensions, declared that the 54-year-old’s appointment was impermissible because the president did not rely on a time-limited provision of the Federal Vacancies Reform Act (FVRA). Additionally, Cassidy, 65, argued that Su’s designation as acting secretary under a different law, the Department of Labor’s succession statute, was unconstitutional. Business groups echo the charge. They are incorrect. 

The President appointed—and the Senate confirmed—Su to be deputy secretary of labor shortly after Biden took office in 2021. Two years later, in March 2023, Labor Secretary Martin Walsh, the former mayor of Boston, resigned to head the National Hockey League players’ union. When a high-level official, such as a cabinet secretary, resigns, the president ordinarily submits a nominee to the Senate to confirm a permanent successor. In the meantime, the President looks to statutes to determine who may serve in a so-called “acting” capacity.  

Two statutes apply to the Labor Department when the secretary resigns. One is specific to the Labor Department. It states: “[t]he Deputy Secretary shall . . . in case of the death, resignation, or removal from office of the Secretary, perform the duties of the Secretary until a successor is appointed.” The President installed Su as the acting secretary, citing the authority of this statute. 

The second statute is the FVRA, also commonly called the Vacancies Act. The statute is a 1998 modification of succession laws dating back to Reconstruction. Under that statute, the Senate-confirmed “first assistant” is to “perform the functions and duties of the office temporarily in an acting capacity” should their superior resign. (The Act gives presidents some additional options, none of which Biden invoked for the Labor vacancy.) As the deputy secretary of labor, Su is the secretary’s “first assistant” and the presumptive temporary appointee under the FVRA, just as she is under the Labor Department act. 

So, what is Cassidy’s beef? The Labor Department succession statute puts no time limit on the duration of an acting secretary’s appointment, but the Vacancies Act, in some cases, does. (The law was pushed by Senate Republicans who, at the time, controlled the chamber and objected to President Bill Clinton’s use of vacancy appointments.) Cassidy gripes that Biden’s use of the Labor Department’s succession statute is an illegitimate workaround to avoid the FVRA’s time limits. In his July letter, the three-term Republican said Biden’s use of the Labor Department statute “violates the constitutional provision of advice and consent and would potentially open any DOL action under Julie Su’s leadership to legal challenges.” 

Unfortunately for Cassidy, the FVRA time limits are no more constraining in Su’s case than is the Labor Department act. 

Understanding what Cassidy gets wrong requires wading into the weeds of an arcane statute. Cassidy points to a provision in the Vacancies Act under which an acting official may serve only 210 days. However, the former gastroenterologist ignores that the 210-day limit effectively disappears when the President has submitted a nominee to fill the vacancy. An acting officer may then serve “from the date of such nomination for the period that the nomination is pending in the Senate.”  

In March, the president nominated Su to fill the vacancy left by Walsh. Cassidy is no doubt frustrated by the apparent decision of Senate Majority Leader Chuck Schumer of New York to keep Su’s nomination off the calendar so that it is effectively pending indefinitely. Senator Joe Manchin, the West Virginia Democrat, opposes Su’s nomination, and his colleague, Kyrsten Sinema, the independent from Arizona, has not promised support. Even with Vice President Kamala Harris’s potential vote, Su might not win confirmation. Yet unless the Senate rejects her nomination or it is withdrawn—events that would reset the clock, giving her another 210 days to serve—Su can serve indefinitely under the Vacancies Act, just as she may serve indefinitely under the Labor Department’s succession statute. 

Cassidy’s argument that Su’s service is unlawful is thus doubly misbegotten. First, he assumes reliance on the Labor Department succession statute is improper because the Vacancies Act typically represents the exclusive means for filling positions in Senate-confirmed offices. He’s wrong. The law offers an explicit exemption when another statute temporarily “designates an officer or employee to perform the functions and duties of a specified office.” In other words, by its own terms, the Vacancies Act acknowledges the propriety of already-existing agency-specific statutes, such as the Labor Department’s.  

Second, even if the FVRA were the one truly applicable statute, it wouldn’t make a difference. While Su’s nomination is pending in the Senate, the act sanctions her service.  

Cassidy’s claim that Su’s service is unconstitutional is equally unpersuasive. “This use of the Succession Act violates the constitutional provision of advice and consent,” he claims. For one thing, Senators knew that Su’s deputy post carried the potential of elevation to acting secretary when they confirmed her. For another, this “use” of the succession statute is the only use of the succession statute: to provide continuity of leadership in the absence of a Senate-confirmed secretary. If that is unconstitutional, then so is the entire FVRA. Yet the law has been in effect for 25 years and has faced no significant legal challenges. Its plainly legitimate purpose is to ensure that federal agencies can carry on the work of the government despite important vacancies. 

The real reasons business groups and Republicans such as Cassidy have opposed Su’s nomination are her pro-worker policies and her efficacy. (This is putting aside what may be the appeal to Cassidy of shoring up his right flank after having voted to convict Trump at the 45th president’s second impeachment trial and earning flak from fellow Republicans for supporting Biden’s signature infrastructure bill.) First, as a private attorney and then as secretary for the California Labor and Workforce Development Agency, Su was notably successful in advocating for and enforcing the rights of low-income and immigrant workers. She is also the first MacArthur “genius” grant winner to serve in a presidential cabinet, recognized in 2001 for “provid[ing] a powerful model for public advocacy” through “[h]er attention to the human and legal dimensions of the abuses of immigrant laborers.” 

An example of what drives opposition to Su’s service as the Acting Labor Secretary is her advancing a proposed Labor Department rule on whether so-called gig workers, such as rideshare drivers, are appropriately classified as “employees” or “independent contractors” under the Fair Labor Standards Act. In October, the administration proposed returning the determination to its historical roots after a detour at the end of the Trump administration. It would condition worker classification on a totality-of-the-circumstances test. Flex, a trade association representing rideshare and other delivery platforms, unsurprisingly opposes such an approach, which could result in more app-based workers falling within the protective umbrella of federal wages and hours law. 

The Labor Department claims it “does not believe” that its “proposed rule would result in widespread reclassification of workers.” Yet given that, even under Labor’s estimates, over 22 million persons work as independent contractors, the new rule will surely be litigated once finalized. The opponents’ inevitable challenge that the rule is arbitrary and capricious will require courts, as in all such cases, to carefully scrutinize the administrative record and the department’s reasoning. Nothing about Su’s appointment, however, should deter the administration from moving forward. Acting Secretary Su can sign off on that rule because she is serving lawfully in Labor’s top office. 

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Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane