The White House appears to have added Julie Su to its official presidential order of succession, furthering the Biden administration’s plans to violate congressional intent and keep the Acting Secretary of Labor in office indefinitely.
Julie Su, President Biden’s Deputy Secretary of Labor who was nominated to become the next Secretary of Labor but failed to earn enough Senate support to be confirmed, is today featured on the White House’s official webpage for the administration’s Cabinet members. The webpage notes that the officials are displayed “in order of succession to the Presidency.”
Su is displayed as eleventh in the presidential order of succession, immediately after Commerce Secretary Gina Raimondo and before Health Secretary Xavier Becerra, Housing and Urban Development Secretary Marcia Fudge, and Transportation Secretary Pete Buttigieg. Previously, after former Secretary of Labor Marty Walsh left office in March, the White House removed the Secretary of Labor from the Cabinet webpage altogether and Secretary Becerra was shown as eleventh in the order of succession.
After months of Su’s nomination languishing in the Senate, unable to obtain enough support for confirmation, the White House quietly added Su to the Cabinet webpage ahead of Becerra. The timing does not appear to be a coincidence.
Notably, an analysis of Archive.org web-captures shows that Su was added to the list of Cabinet Secretaries on July 20th, 2023. This was the exact same day as Politico first reported on the Biden administration’s alleged plans to abandon their attempts to move Julie Su through the Senate confirmation process and instead keep her as Acting Secretary indefinitely. Politico’s reporting at the time, which cited an anonymous source, did not include any mention of the changes to the Cabinet webpage.
Though the White House has been reluctant to publicly confirm their plans to keep Su in an acting capacity indefinitely, the simultaneity of the comments made to Politico and the official placement of Su on the Cabinet webpage all but verifies that the reports are accurate.
Due to these plans, President Biden has already been accused of violating the U.S. Constitution and the Federal Vacancies Reform Act of 1998, which regulate how an individual is designated as an acting official and how long he or she is allowed to serve. Recently, Congressman Kevin Kiley (R-Calif.) offered a bill which would amend 29 U.S. Code § 552 to block the Biden administration’s bypassing of Congress and make clear that the Deputy Secretary of Labor cannot serve as Acting Secretary indefinitely.
By attempting to add an Acting Secretary to the order of presidential succession in White House documentation, the Biden administration may be in violation of yet another law: the Presidential Succession Act of 1947.
The Presidential Succession Act lays out the order in which Cabinet Secretaries may ascend to the role of President in the event that the incumbent President, Vice President, Speaker of the House, and Senate President Pro Tempore are all unable to serve. Though the “Secretary of Labor” is included in the list, “Acting Secretary of Labor” is not. Furthermore, the law specifies that inclusion in the order of succession “shall apply only to officers appointed, by and with the advice and consent of the Senate.”
While this text should demonstrate that Acting Secretaries are not eligible for succession to the presidency, the Biden administration recklessly muddies the waters by declaring that Acting Secretary Julie Su is a part of their order of succession. A report from American Enterprise Institute last year describes the chaos that would ensue in a crisis where the top officials in the United States are made unable to serve and an Acting Secretary believes him or herself to be next in the line of succession. That report recommends congressional action to make it even more explicitly clear that Acting Secretaries are not eligible to ascend to the presidency.
As indicated by the “temporary” nature of acting positions laid out in the Federal Vacancies Act, the appointment of an individual to the office of Deputy Secretary does not automatically mean that the Senate has given consent for that individual to permanently serve as the full Secretary. This is particularly true in a situation where the Senate has explicitly indicated that it disapproves of that individual to serve as Secretary, as is the case with Ms. Su.
The Biden administration’s attempts to illegitimately maintain Julie Su as the head of the Department of Labor are only becoming more dangerous. It is long past time for President Biden to respect the will of the American people and their elected representatives by withdrawing the nomination of Julie Su.