How long can Julie Su remain Joe Biden’s acting labor secretary? Answer may surprise you

Julie Su’s bid to become Secretary of Labor remains stalled in the Senate, by all accounts because she does not have the necessary votes to earn confirmation.

But in one practical sense that might not matter. Su was named Acting Secretary of Labor by President Joe Biden on March 11 — and there are no specific time limits on how long she can serve in that capacity, according to laws governing the top Labor Department job.

So while the Senate confirmation process drags on with no end in sight, Su, the former head head of California’s labor department, can continue doing the job.

Su was nominated Feb. 28 to become Secretary of Labor. Cabinet secretaries require Senate confirmation, but Su’s fate is uncertain because of concerns about her stewardship of California’s unemployment system during the chaotic COVID-19 pandemic period, as well as some qualms about her views about business interests.

Democrats control 51 of the Senate’s 100 seats, enough to confirm Su, but at least two centrist Democrats have reservations. Sens. Joe Manchin, D-West Virginia, and Jon Tester, D-Montana, are undecided, and both are up for re-election next year in states President Donald Trump won easily in 2020.

Tester told The Bee last week he is still looking at “things in her background, what she did in California.”

He didn’t like the idea of Su remaining acting secretary indefinitely. “I don’t think that’s the optimal way to go here,” he said.

The Senate left Washington Thursday and is not scheduled to return until May 30.

No one is saying when, or even if, a Su vote could occur.

“It should be sooner rather than later,” said Sen. Bernie Sanders, Ind.-Vt., chairman of the Senate Health, Education, Labor and Pensions Committee, which approved her nomination last month on a party line vote.

In the meantime, Su remains acting head of the sprawling agency, which manages the nation’s job training, unemployment, labor statistics and other labor-related duties and policies.

She can stay because of a 1946 law, amended in 1986, that allows the department’s deputy secretary to “perform the duties of the Secretary until a successor is appointed.”

Su was deputy secretary from 2021 until this spring. She was confirmed to that job by the Senate on a party line vote in 2021. Su has been acting secretary since Marty Walsh left on March 11.

Usually federal job vacancies are governed by the Vacancies Act, which requires a replacement within 210 days. The process is overseen by the nonpartisan Comptroller General.

The opposing views

While the Senate considers Su, both sides in this fight are waging intense campaigns. A key flashpoint has been her record in California, where she served as Secretary of the Labor and Workforce Development Agency in the Newsom administration.

The agency’s Employment Development Department, which manages the unemployment system, was overwhelmed in the pandemic’s early days, causing widespread complaints about delays, confusion and poor customer service.

The EDD was also hit with fraud in the federal Pandemic Unemployment Assistance program, a COVID-era benefit for workers who could not typically qualify for traditional unemployment insurance. An estimated $31 billion was collected fraudulently, almost all from the PUA program.

The AFL-CIO is fighting hard for Su’s confirmation, urging senators to look at Su’s overall record of advocacy for worker rights, both as a government official and an attorney.

Labor has launched a six-figure digital ad campaign as well as what it calls a nationwide worker mobilization, an effort to have members contact senators back in their states.

On the other side, many business interests paint Su as too beholden to labor interests and a bad choice to run a Cabinet agency.

She’s an “outside-the-mainstream California regulator who is unqualified to run the Department of Labor,” said Michael Layman, Internal Franchise Association senior vice president of government relations and public affairs.

Where the situation goes from here might very well be up to Biden.

Su could withdraw her nomination, allowing Biden to choose another nominee. Or either Manchin or Tester could say he’s voting yes, probably triggering a full Senate vote and confirmation. Or Biden could effectively do nothing and simply keep the position vacant, allowing Su to continue as Acting Secretary as long as he’s in office.