President Joe Biden re-nominated Julie Su for Secretary of Labor on Monday. Su has been acting secretary of Labor since March 2023.
Su’s nomination passed through the Senate Committee on Health, Education, Labor and Pensions in April by an 11 to 10 vote. Her nomination then stalled in the Senate, and a full vote was never held. Presidential nominations must be renewed at the start of a new year.
Her tenure of Secretary of Labor in California was criticized by Republicans at that hearing, especially the state’s unemployment program and a new independent contractor definition rule that she implemented in California.
In September, Senate Republicans introduced a bill, the Advice and Consent Act, which would require nominees to step down 210 days after their nomination if they have not been approved. A vote has not yet been held on that legislation.
After the Department of Labor’s retirement security proposal—sometimes called the fiduciary proposal—was proposed on October 31, some commenters argued that the DOL does not have the authority to finalize rules under an acting secretary. A letter from the American Securities Association stated that “If the proposals are approved by Julie Su, who is purporting to be the Acting Secretary of the DOL, they will be void and unenforceable because Ms. Su was not confirmed by the Senate as required by the Appointments Clause.”
Under current law, it is unclear what authorities an acting secretary possesses. An opinion issued by the Government Accountability Office argued that if the Secretary of Labor resigns, as Julie Su’s predecessor Marty Walsh did, then the deputy secretary “shall perform the duties of the Secretary until a successor is appointed.” Su had previously been confirmed as Deputy Secretary of Labor.
Hearings to re-consider Su’s nomination have not yet been scheduled.
