Congress’ watchdog agency has provided Acting Labor Secretary Julie Su the green light to continue serving in an acting capacity—news that is not likely to please congressional Republicans.
In a memo dated Sept. 21, the Government Accountability Office—responding to a congressional request regarding the legal authority governing Julie Su’s service as Acting Secretary of Labor and whether any time limitations apply to her service—concluded that Su is “lawfully serving as the Acting Secretary under 29 U.S.C § 552 (section 552).”
“We also conclude that the Vacancies Act’s time limitations on acting service do not apply to the Acting Secretary’s service,” the GAO stated.
Su’s status as Acting Labor Secretary had come under fire after she replaced former Labor Secretary Marty Walsh and it became apparent that she did not have the votes in the Senate to confirm her as Labor Secretary.
Rep. Virginia Foxx (R-N.C.), who is chair of the House Education and the Workforce Committee, in July submitted a request to GAO to examine whether Su serving in an acting capacity is subject to time limits under the Federal Vacancies Reform Act of 1998.
As background, the Federal Vacancies Reform Act establishes requirements for temporarily filling vacant positions in the Executive Branch that require presidential appointment and Senate confirmation. The Act identifies who may temporarily serve, for how long, and what happens when no one is serving under the Act and the position is vacant. In general, GAO serves as the arbiter for the statute, issuing decisions when there are violations of the Act’s time limitations and rulings on agency compliance with the Act when requested by Congress.
To preempt the issue, the DOL last March contended in a letter to the GAO that Su is serving as Acting Secretary of Labor, not under the Vacancies Act, but under a DOL-specific succession statute (29 U.S.C. Section 552), allowing the Deputy Secretary to perform the duties of the Secretary of Labor. Su had been previously confirmed as Deputy Secretary in July 2021.
To make a long story short, the GAO agreed with the Biden administration’s interpretation. “Because section 552 expressly requires the Deputy Secretary to perform the duties of the Secretary temporarily in an acting capacity, the provision provides authority, independent of the Vacancies Act, for an official to serve as the Acting Secretary,” the letter from GAO General Counsel Edda Emmanuelli Perez explained.
“As the Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary under section 552 until a successor is appointed. The Vacancies Act’s time limitations do not apply to her service,” the GAO concluded.
As to the implications of this ruling, it may blunt future efforts by congressional Republicans and various outside parties that may want to challenge rulemaking efforts by the DOL that are promulgated under Su’s watch.
Bills to Block Su as Labor Secretary
In the meantime, House and Senate Republicans have introduced legislation to clarify federal law to ensure that the tenure of an Acting Secretary of Labor is subject to the Federal Vacancies Reform Act.
In mid-September, the House Education and the Workforce Committee advanced legislation (H.R. 4957, Department of Labor Succession Act) to clarify the law and block Julie Su's nomination as Labor Secretary.
Additionally, Sen. Bill Cassidy (R-LA), the ranking Republican on the Senate Health, Education, Labor and Pensions (HELP) Committee, introduced the Advice and Consent Act to prevent the executive branch from “circumventing Congress’ constitutional duty to confirm the Secretary of Labor.”
