Biden Backdoors Su, Opponents Threaten Legal Action

The ‘advice and consent’ clause is there for a reason – it’s to keep presidents from becoming dictators

President Joe Biden has reportedly decided to keep Acting Secretary of Labor Julie Su as “acting” secretary despite the fact that she cannot manage to get through the Senate to get the job for real.

Sources have told both Reuters and Politico that Biden will keep her in the job, almost certainly until the 2024 election, no matter if the Senate confirms her or not.

This unprecedented move side-steps the normal Senate confirmation process that all cabinet secretaries – and many other federal officials – must go through and has Su’s detractors already threatening legal action.

“It’s no surprise Su is getting another hall pass from this administration,” said California Business and Industrial Alliance (CABIA) President Tom Manzo.  “We will not let this go unchallenged and we are reviewing our legal options to keep Biden from skirting the Constitution in this blatantly improper decision.  The ‘advice and consent’ clause is there for a reason – it’s to keep presidents from becoming dictators.”

California Rep. Kevin Kiley (R-Rocklin) sits on the House committee that oversees the Labor department. In light of the Biden move, he reminded the president that the department’s budget must through that committee.

“Biden couldn’t get the votes, so now he says a vote isn’t needed. The Constitution says otherwise,” Kiley said. “Congress controls the Labor Department’s funding. We will not let this lawlessness stand.”

If Su could get confirmed by the Senate – Biden nominated her four months ago- this issue would be moot. But since she cannot be sure of getting 50 yes votes (Vice President Harris would break the tie in her favor) not vote has even be scheduled.

The United States Constitution states the following: 

“…by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

That being said, the current Su situation does have certain gray areas.

Su was the deputy labor secretary until her predecessor, Marty Walsh, left to take over the NHL players union, triggering her acting secretary status.  Typically, under a law called the Vacancies Act, Su, who was nominated about four months ago, would have a 210-day time limit – for her, that’s mid-October – to her “acting” term.

However, the Labor department has its own “succession statute” which states that the deputy becomes the acting secretary automatically and shall “perform the duties of the Secretary until a successor is appointed…”

The labor statue has no time limit.

A second issue is that Su’s nomination is still technically “pending” before the Senate.  Because of that, it is possible that she can remain acting secretary for as long her nomination is pending, according to a recent Congressional Research Service non-Su specific report on the Vacancies Act.

The Government Accountability Office was asked just 10 days ago by Rep. Virginia Foxx (R-N.C.) – chair of the House committee overseeing the labor department – to determine which law took precedence as they seem to be in conflict. 

The GAO said Monday they have begun actively investigating the issue; whether or not today’s Biden move is an attempt to cut off that investigation at the knees and/or to put Su in place before it issues a finding is unknown.

Biden will apparently not formally withdraw Su’s nomination, nor will he nominate someone else, allowing – the administration claims – Su to continue to serve despite the constitutional rights and duties of the Senate being ignored.

“The administration seems to be driving a semi-truck through a legal loophole by keeping Julie Su in an acting role despite bipartisan opposition in the U.S. Senate,” said George O’Connor, spokesman for the Owner-Operator Independent Drivers Association (OOIDA), a national self-employed trucker organization.  “It’s clear she doesn’t have the votes to be confirmed and her nomination should be pulled.”

O’Connor said his group, like CABIA, is weighing “all options” going forward.

The OOIDA is one of many business groups opposing Su for her zealous enforcement and support of California’s AB 5 anti-freelancer law.

Despite her protestations to the contrary, it is widely suspected that Su will attempt to shoehorn similar regulations into federal law.  The PRO Act, which big labor supports and roughly copies California’s AB-5 at a federal level, has failed in Congress at least twice.

There are reportedly a number of new regulations that have been delayed by the uncertainty over Su.  It can be expected now that they will be put into place as quickly as possible, as anything Su does after her 210 time-limit could be deemed unlawful if she in fact is not allowed to serve indefinitely as Biden claims.

Su’s nomination has also been opposed by, well, anyone aware of her tenure as California’s labor secretary during which she sat by and did nothing until it was far too late as $40 billion was pillaged from the EDD during the pandemic.

Click here to read the full article in the California Globe

Julie Su Has to Wait Until After Senate Recess

Many point to not only her EDD disaster but the state’s myriad other problems and clear

The tortured path of Julie Su’s journey to be Joe Biden’s Secretary of Labor is riven with potholes, politics, and the PRO Act.

In the past week, Su was praised by some for helping broker a tentative end to the west coast port slowdown.  On the downside, the independent truckers set their phasers on blast – again – and 33 senators asked Biden to withdraw her nomination.

And now, she’ll have to wait until after the Senate recess ending July 7 to even have a chance to schedule a nomination confirmation vote by the full Senate.

As to the port deal, not just Biden praised Su for doing whatever it is she did to bring the two sides together. LA Port Executive Director Gene Seroka lauded Su’s performance, saying she “delivered” and deserves a quick vote to confirm her.  Of course, he said pretty much the same thing about a month ago, so exactly how much that matters is questionable.

And longtime ally and California Federation of Labor leader Lorena Gonzalez chimed in about the port deal, adding that “(H)er decades of work in the Golden State are beyond comparison.”

Gonzalez may actually be correct in her assessment (for once) as Su’s stewardship of the Employment Development Department during the pandemic was truly “beyond comparison” since no one had lost $40 billion in taxpayer money to fraud before.

Su and Gonzalez go way back, as Gonzalez was the author (before she moved from the legislature to her current union chief gig) of AB 5, the notorious anti-freelance bill Su zealously enforced.

In a recent Congressional hearing, Su said she merely enforced the law a few minutes before she admitted she actually helped write it.

One of the real fears of the businesses that have come together to fight Su is that she will push AB-5-type regulations through bureaucratic means on a federal level, even if the PRO Act itself never actually passed by Congress.

Currently, Su’s fate lay in the hands – most likely – of five senators: Democrats Manchin of West Virginia, Tester of Montana, and Kelly of Arizona, Independent Sinema, also of Arizona, and Republican Murkowski of Alaska.  The remaining Republicans are steadfastly opposed while the other Democrats are behind Su, though maybe with not quite the fervor the Republican opposition.

If Su loses two of those four senators, she will not get the job.

Manchin is most likely to vote no, for both political and policy reasons.  In fact, he and other senators (from both parties) demanded Su fix problems with an overseas worker visa program known as H2-B.  Earlier in her confirmation process, Su faced another worker visa scandal when one of her own employees referred to a different worker program the “equivalent to the purchase of humans.”  

In other words, irking one of the people who can keep you from getting a job may not be a good idea.

Tester and Sinema are most likely far more worried about the politics of the nomination as both are facing are tough re-elections fights in states that may not be terribly Su-supportive; while Arizona may be a bit “purple” of late, Montana is no other shade than red.

Murkowski is murkier. She has not voted for Su in the past (recent committee vote, 2021’s full Senate vote to confirm her as deputy labor secretary, her current actual job) but she is widely known around DC for being relatively amenable to a bit of wheeling and dealing with Biden and the Democrats to secure stuff – anything, really – for her home state of Alaska.

In the past 20 or so years, Alaska has received far more per-capita in federal “earmarks” and other specifically dedicated federal project funding than any other state.  Murkowski is following in the footsteps of her father, Sen. Frank Murkowski, who appointed her to his senate seat when he became governor in 2002, who was also (along with pretty much every other Alaska pol in DC) for “bringing home the bacon.”

That history could play a role in Murkowski’s ultimate decision.

Su has also faced other recent allegations that have played a part in stalling the nomination process, failing to properly curtail migrant childhood labor.

Finally, a consistent theme of Su’s opposition has been about her home state of California, with many pointing to not only the EDD disaster but the state’s myriad other problems and clear precipitous decline of late.  

Click here to read the full article in the California Globe

Julie Su Ordered Staff to Obstruct Immigration Agents

Impeding federal agents is not a good look for a possible cabinet member

When she was California’s Labor Commissioner, Julie Su directed department staff to not cooperate with federal immigration agents if they appeared at any commission office looking for illegal aliens.

Su’s 2017 memo also strongly implies that Commission employees should actively help an illegal alien avoid having to have any potential contact with an agent:  

“For example, under these protocols (as well as current practice), staff may of course escort or show a worker to any part of our office (including behind closed doors), for the purpose of allowing the worker to obtain information about labor laws, to participate in one of our proceedings, or to be interviewed by a Deputy or Attorney. These protocols also make clear that staff should not give certain information (as noted above) to an agent.

The entire memo can be found in PDF form at the end of this story.

As Su could shortly become the federal Labor Secretary, her past encouragement to assist people to violate federal law seems rather problematic.

“She was actively preventing federal law from being enforced,” said Ira Mehlman, media director of FAIR, the Federation for American Immigration Reform. 

Mehlman noted it is illegal – under federal law –  for illegal aliens to be employed. In other words, the possible future Labor secretary was assisting people who are not allowed to be part of the labor force.

“These sorts of statements should disqualify her from being Labor Secretary,” Mehlman said.

The memo came to light after Senate Health, Education, Labor, and Pension (HELP) committee member Sen. Tommy Tuberville (R-AL) asked Su about it during her recent confirmation hearing.  Su said she could not recall the details of the memo and did not have a copy, forcing the committee to obtain the information directly from the state Labor and Workforce Development Department which Su ran during the pandemic.  

“If you’ve subverted implementation of federal law in the past, that is of great concern if you now aspire to head a federal department. It should be disqualifying. You don’t get to pick and choose the laws you implement and enforce,” said HELP committee ranking member Sen. Bill Cassidy (R-LA).

Su’s leadership of the department that includes the EDD –  which lost about $40 billion to fraud and still owes the federal government nearly $17 billion in loans it took to cover legitimate and fake unemployment benefits – has been widely panned, with senators like Mitt Romney (R-UT) saying her failure in California alone disqualifies her from being in President Biden’s cabinet.

The memo pays lip service to things like the law and laughably calls the directive non-political – “Core constitutional principles form the basis of these protocols, which are not aimed at interfering with the enforcement of federal immigration laws, nor are they political in nature.”

The reason given for it and the specific actions it details would seem to contradict those claims.

“There is no doubt that the presence of federal immigration agents in our offices would have a substantial chilling effect on the willingness of workers to report labor law violations and to participate in our enforcement activities,” reads the memo. “If a worker believed that coming to our offices could potentially make her the target of ICE enforcement, she would most likely not step forward in the first place to assist with our enforcement efforts.”

One of the tactics the memo:

“Labor Commissioner staff should not voluntarily permit a federal immigration agent to enter any part of our office. Staff should ask the agent to leave our office, including the waiting room, and inform the agent that the Labor Commissioner does not consent to entry or search of any part of our office. Doors that lead to the inner office suite, and office doors that are generally locked or shut, should not be voluntarily opened for the agent.”

For background, the Labor Commission operates numerous offices throughout the state at which workers who feel they have been abused, improperly paid, etc. can file complaints and have those complaints adjudicated. 

At the time of the memo, Su told the Los Angeles Times she suspected that employers being accused of underpaying employees tipped off federal immigration agents about the status of the workers. “We should not enable unscrupulous employers who use immigration status as a vulnerability to retaliate unlawfully against a worker who is seeking our protection,” Su said in 2017.

ICE vehemently denied the accusation, but that did not stop Su from ordering agents be barred from the state offices – even including the waiting room –  unless they have a warrant signed by a judge.

The ramifications for Su’s nomination are as yet unclear, but as it was hanging by a knife edge anyway it almost certainly will not help.  While the return of Dianne Feinstein to semi-active duty benefits Su (one more vote,) there are at least four other Democrats who have yet to publicly declare their support for Su and she can only lose two of them.

And one of those senators is Arizona independent Kyrsten Sinema who could be very worried about being seen to support a practically “open-borders” Labor secretary in advance of her re-election campaign next year.

Click here to read the full article in the California Globe

An Official Named Su

President Biden’s nominee to be secretary of labor is in real danger of not being confirmed.

Julie Su, a lifetime labor-union official, isn’t an ordinary nominee. Until 2021, she was California’s labor secretary and presided over perhaps the biggest single example of fraud in the state’s history. The state’s unemployment system paid out tens of billions in expanded Covid-19 unemployment benefits that were subsidized by the federal government.

The fraud came after a state auditor warned the state to stop printing Social Security numbers on mail. He was ignored. Others warned that rings of scammers were bilking the system. They, too, were ignored. The Washington Examiner reports that “California reportedly sent $1 billion to fraud rings involving prisoners who were filing fraudulent claims while actively behind bars.”

Even Senator Mitt Romney, one of the Republicans most supportive of confirming Biden’s previous cabinet choices, says he has reached his limit in being asked to confirm Julie Su. At her confirmation hearing last Thursday, he said:

The fact that under your lead, unemployment insurance payments in California of some $31 billion went to people who were basically receiving money on a criminal basis  . . . $31 billion, that’s about as much as we provided in military aid to Ukraine. That’s almost twice the total budget of the Department of Labor. . . . In this case, your record there is so severely lacking, I don’t know how in the world it makes sense for the president to nominate you to take over this department.

Despite this record, Su was confirmed by 50 to 47 as Biden’s deputy secretary of labor in 2021. But several Republicans were absent from that vote, and three of the senators who voted for her have yet to back her promotion: Joe Manchin of West Virginia, Kyrsten Sinema of Arizona, and Jon Tester of Montana. All are up for reelection in 2024 and nervous about being linked to Su’s radicalism and incompetence.

All the country’s major business groups lined up against Su before her confirmation hearing. They pointed out that Su was also a major force behind California’s Assembly Bill 5, a law that essentially abolished independent contractors in the state. AB 5 was eventually repealed in a referendum by a 58 percent majority of the state’s voters, but not before it temporarily wrecked the state’s trucking industry and exacerbated its supply-chain problems at major ports.

Click here to read the full article in the National Review