Su has been serving as acting labor secretary since former Secretary Marty Walsh departed the administration in early 2023. Su served as deputy labor secretary under Walsh, where she assisted the Biden administration in several key labor and supply chain disputes during the early days of the COVID-19 pandemic recovery.
"Upon Secretary Walsh’s departure, Acting Secretary Su automatically became Acting Secretary under its organic statute, not under the Federal Vacancies Reform Act,” a White House official said in a statement. "As a result, Su is not subject to the time limits of the Federal Vacancies Reform Act and she can serve as Acting Secretary indefinitely."
Unlike other federal agencies, the Department of Labor is not beholden to the Federal Vacancies Reform Act, which requires nominees to be confirmed by the Senate within a set time frame. A 1946 law was amended in 1986 to allow the deputy labor secretary, a post to which Su was confirmed in 2021, to indefinitely perform the duties of secretary until the president announces a new nomination.
Biden, top White House officials, the majority of congressional Democrats, and several prominent union voices have all consistently pushed for Su's confirmation after her nomination was announced five months ago.
However, Democrats only hold 51 Senate seats, and Su does not currently have the support required to confirm her to her new position. Sen. Joe Manchin (D-WV) told the White House that he has concerns with Su's "progressive background" and would vote down her confirmation.
White House press secretary Karine Jean-Pierre told reporters this week that, despite pushback from some senators, Biden still believes Su is qualified to lead the Labor Department.
"He nominated her because he believed that she was eminently qualified to do the job. And she has done it in a — in a brilliant way," she said during a press briefing on July 19. "Let's not forget the major labor agreements that she was able to do with the West Coast ports. That's something she did as acting. And let's not forget what that would have done. That would have hurt our supply chain. And so, she has been able to do that."
Manchin's concerns echo those made by a large share of Republicans regarding her tenure as secretary of California's Labor and Workforce Development Agency. During her time in that role, California fulfilled $20 billion in fraudulent COVID-19 unemployment claims, which have still not been accounted for years after disbursement.
Meanwhile, centrists, including Sens. Kyrsten Sinema (I-AZ), Angus King (I-ME), and Jon Tester (D-MT), have not publicly declared if they would support Su or not.
Sen. Mazie Hirono (D-HI) told the Washington Examiner she still believes Su can be confirmed at some point.
"I'm hoping that some people will just wake up to their responsibilities and do the right thing," she stated. "All I can say is that she deserves all of our support and note that every single Democrat supported her for deputy. She's already shown her ability to lead this department as secretary, and I would like everybody to just make up their mind to get on with it and do the right thing."
Tester has also opposed the idea of Su serving indefinitely as acting secretary.
“I don’t support that myself. I didn’t support it in the last administration. I don’t support it in this one," he told NBC News. "I just don’t think they can do the job they need to do in an acting position. That’s my own opinion, could be wrong. But I just think there’s much more certainty if you’ve been confirmed.”
Former President Donald Trump utilized a similar strategy to Biden's plan for Su to bypass Senate confirmation protocols at multiple agencies in the latter part of his term in office.
Both Chad Wolf and Chris Miller, respectively, led the Department of Homeland Security and Department of Defense as acting secretary. A federal judge in Maryland ruled in September 2020 that Wolf and his top lieutenant, acting Deputy Secretary Ken Cuccinelli, were serving in their positions in an unlawful violation of the Appointments Clause of the Constitution and Federal Vacancies Reform Act, though neither were removed from their posts.
The Government Accountability Office, an independent government agency, also released a report in September 2020 alleging that in total, 15 Trump administration officials at 12 different agencies were serving in violation of the Federal Vacancies Reform Act.
David Sivak contributed to this report.