[House Report 118-254]
[From the U.S. Government Publishing Office]


118th Congress   }                                      {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {     118-254

======================================================================



 
                   DEPARTMENT OF LABOR SUCCESSION ACT

                                _______
                                

October 25, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Ms. Foxx, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 4957]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 4957) to apply the requirements of the 
Federal Vacancies Reform Act of 1998 to a vacancy in the office 
of the Secretary of Labor, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Department of Labor Succession Act''.

SEC. 2. APPLYING THE REQUIREMENTS OF THE VACANCIES ACT TO VACANCY IN 
                    OFFICE OF SECRETARY OF LABOR.

  The first section of the Act of April 17, 1946 (60 Stat. 91; 29 
U.S.C. 552) is amended by striking the second and third sentences and 
inserting the following: ``The Deputy Secretary is authorized to 
exercise the functions and perform the duties of the first assistant of 
the Secretary of Labor within the meaning of section 3345 of title 5, 
United States Code, and shall perform such other duties as may be 
required by law or prescribed by the Secretary of Labor.''.

                                Purpose

    H.R. 4957, the Department of Labor Succession Act, amends 
the Act of April 17, 1946\1\ (Deputy Secretary of Labor 
statute) to apply the requirements of the Federal Vacancies 
Reform Act of 1998\2\ (Vacancies Act) to a vacancy in the 
office of the Secretary of Labor.
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    \1\29 U.S.C. Sec. 552.
    \2\5 U.S.C. Sec. Sec. 3345-3349c.
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                            Committee Action


                             118TH CONGRESS

First Session--Hearing

    On June 7, 2023, the Committee on Education and the 
Workforce held a hearing entitled ``Examining the Policies and 
Priorities of the Department of Labor'' to examine the 
Department of Labor's Fiscal Year 2024 budget priorities and 
evaluate the effectiveness of the Department of Labor's (DOL) 
senior leadership. The sole witness was the Honorable Julie A. 
Su, Acting Secretary of Labor, Washington, D.C. Ms. Su was 
questioned about her tenure as Acting Secretary of Labor and 
her nomination to become the Secretary of Labor. During this 
hearing, Members examined Acting Secretary Su's management and 
her fitness to serve as the head of DOL.

Legislative Action

    On July 27, 2023, Rep. Kevin Kiley (R-CA) introduced H.R. 
4957, the Department of Labor Succession Act, with Chairwoman 
Virginia Foxx (R-NC) as an original cosponsor. On September 14, 
2023, the Committee considered H.R. 4957 in legislative session 
and reported it favorably, as amended, to the House of 
Representatives by a recorded vote of 23-19. The Committee 
adopted an Amendment in the Nature of a Substitute offered by 
Rep. Kiley, which made a minor technical change.

                            Committee Views


                              INTRODUCTION

    On February 16, 2023, the Honorable Martin J. Walsh 
announced his intention to resign his position as the 29th 
Secretary of Labor.\3\ Prior to Secretary Walsh's resignation, 
on February 28, 2023, President Biden nominated Deputy 
Secretary of Labor Julie Su to become the 30th Secretary of 
Labor.\4\ On March 11, 2023, with the resignation of Secretary 
Walsh, Deputy Secretary Su became the Acting Secretary of 
Labor.\5\ For the purposes of Ms. Su's tenure as Acting 
Secretary, the Biden administration claims to be using its 
authority under the Deputy Secretary of Labor statute instead 
of the Vacancies Act.\6\ Under the administration's 
interpretation of the law, Ms. Su may serve as Acting Secretary 
until her own nomination or the nomination of someone else is 
approved by the Senate.
---------------------------------------------------------------------------
    \3\Nick Niedzwiadek, It's Official: Labor Chief Walsh Jumps Ship 
For Hockey Players' Union, Politico, Feb. 16, 2023, https://
www.politico.com/news/2023/02/16/labor-secretary-walsh-hockey-step-
down-00083299.
    \4\Press Release, The White House, President Biden Nominates Julie 
Su for Secretary of the Department of Labor (Feb. 28, 2023), https://
www.whitehouse.gov/briefing-room/statements-
releases/2023/02/28/president-biden-nominates-julie-su-for-secretary-
of-the-department-of-labor/.
    \5\DOL, Office of the Secretary, Acting Secretary of Labor Julie A. 
Su, https://www.dol.gov/agencies/osec.
    \6\DOL, Submission Under the Federal Vacancies Reform Act (Mar. 21, 
2023) (on file with Committee); Max Kutner, DOL Says Julie Su Can Run 
Agency Without Senate Approval, Law360, June 2, 2023, https://
www.law360.com/employment-authority/articles/1684354/dol-says-julie-su-
can-run-agency-without-senate-approval.
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    Ms. Su has proven to be a controversial nominee and has not 
secured enough support in the Senate to have her nomination 
approved. Accordingly, despite the purported temporary nature 
of the position of Acting Secretary, the highest position at 
DOL continues to be held by an official who does not have 
enough support to be confirmed to lead the agency on a 
permanent basis.

          DEPUTY SECRETARY OF LABOR STATUTE AND VACANCIES ACT

    There are two federal statutes governing an Acting 
Secretary of Labor's tenure: the Deputy Secretary of Labor 
statute--a 1946 law that created the position of Deputy 
Secretary of Labor--and the Vacancies Act. The Deputy Secretary 
of Labor statute allows the Deputy Secretary of Labor to serve 
as Acting Secretary until a new Secretary is confirmed by the 
Senate. Specifically, the Deputy Secretary of Labor statute 
provides the following:

          [T]he Deputy Secretary shall (1) in case of the 
        death, resignation, or removal from office of the 
        Secretary, perform the duties of the Secretary until a 
        successor is appointed, and (2) in case of the absence 
        or sickness of the Secretary, perform the duties of the 
        Secretary until such absence or sickness shall 
        terminate.\7\
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    \7\29 U.S.C. Sec. 552.

    In contrast, the Vacancies Act sets specific time 
limitations on service:\8\ it allows a person to serve as an 
acting officer ``for no longer than 210 days beginning on the 
date the vacancy occurs'' unless ``a first or second nomination 
for the office is submitted to the Senate,'' in which case the 
person may serve ``from the date of such nomination for the 
period that the nomination is pending in the Senate.''\9\ If a 
first nomination is rejected or returned by the Senate, the 
acting position may continue for another 210 days or during the 
pendency of a second nomination. If that second nomination is 
rejected or returned by the Senate, the acting position ends 
after 210 days.\10\
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    \8\See generally Valerie C. Brannon, Cong. Research Serv., R44997, 
The Vacancies Act: A Legal Overview (2018), https://
crsreports.congress.gov/product/pdf/R/R44997/4.
    \9\5 U.S.C. Sec. 3346(a).
    \10\Id. Sec. 3346(b).
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                  SECRETARY OF LABOR NOMINEE JULIE SU

    On July 20, 2023, Ms. Su became the longest pending cabinet 
nominee--when the same party controls the White House and the 
Senate--dating to at least 1857.\11\ The press dubbed Ms. Su 
``Biden's forever nominee.''\12\ Many of the objections to Ms. 
Su's nomination come from her service as Secretary for the 
California Labor and Workforce Development Agency from 2019 
until 2021. Ms. Su's tenure as California Secretary of Labor 
was mired in mismanagement, resulting in the loss to California 
taxpayers of $32 billion in unemployment insurance wrongly paid 
out to fraudsters.\13\ Ms. Su was also the chief enforcer of AB 
5, a California law that mirrors current federal anti-worker, 
Big Labor proposals like H.R. 20, the Richard L. Trumka 
Protecting the Right to Organize Act (PRO Act), and DOL's 
proposed independent contractor rule.\14\ AB 5 forced many 
independent contractors either to be reclassified in a manner 
inconsistent with their wishes or to lose work 
opportunities.\15\
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    \11\Memorandum from Kathleen E. Marchsteiner, Cong. Research Serv., 
on Longest Presidentially-Appointed, Senate-Confirmed Cabinet 
Nominations in the Senate Since 1857 (Sept. 25, 2023) (on file with 
Committee).
    \12\Hans Nichols & Stef W. Kight, Biden's Forever Nominee, Axios, 
July 13, 2023, https://www.axios.com/2023/07/13/julie-su-labor-
secretary-biden-nomination.
    \13\David Manoucheri, Analysis Shows California EDD Fraud At $32.6 
Billion, KCRA, Oct. 6, 2022, https://www.kcra.com/article/analysis-edd-
fraud-326-billion-and-counting/41281662.
    \14\See Judy Lin, CA's Labor Chief Wants the Jobs of the Future--
and She Wants Them to Cut Inequality, CalMatters, Oct. 16, 2019, 
https://calmatters.org/economy/2019/10/california-labor-chief-jobs-
future-income-inequality-julie-su-ab5-gig-economy-unions/.
    \15\See, e.g., Examining Biden's War on Independent Contractors: 
Hearing Before the Subcomm. on Workforce Protections of the H. Comm. on 
Educ. & the Workforce, 118th Cong. (2023) (statement of Karen Anderson, 
Founder, Freelancers Against AB5).]
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    As Deputy Secretary of Labor, Ms. Su helped impose an 
Occupational Safety and Health Administration workplace COVID-
19 vaccination and testing mandate.\16\ Had this employer 
mandate not been stayed by the Supreme Court, it would have 
applied to nearly 84 million workers.\17\ Not only was DOL 
wrong on the science of COVID, but its sweeping COVID dictates 
also compromised the economic supply chain. The Supreme Court 
decision made clear that by promulgating this oppressive 
mandate, Ms. Su also imposed an unconstitutional rule on 
American workers.
---------------------------------------------------------------------------
    \16\COVID-19 Vaccination and Testing; Emergency Temporary Standard, 
86 Fed. Reg. 61,402 (Nov. 5, 2021).
    \17\NFIB v. OSHA, 142 S. Ct. 661 (2022); OSHA, News Release, US 
Department of Labor Issues Emergency Temporary Standard to Protect 
Workers from Coronavirus, Nov. 4, 2021, https://www.osha.gov/news/
newsreleases/national/11042021.
---------------------------------------------------------------------------
    These examples are just two reasons why Ms. Su's nomination 
has languished in the Senate. However, the Biden administration 
continues to exploit potential ambiguities in the law to 
subvert that nomination process by leaving Ms. Su in an acting 
capacity indefinitely. The President has ignored the separation 
of powers vital to the Constitution to keep in place as Acting 
Secretary a nominee who favors Big Labor special interests over 
the American worker.

             GOVERNMENT ACCOUNTABLITY OFFICE LEGAL OPINION

    On July 6, 2023, Chairwoman Foxx wrote to the Government 
Accountability Office (GAO) requesting that it issue a legal 
opinion on Ms. Su's authority to serve as acting secretary for 
an extended period.\18\ GAO issued its opinion on September 21, 
2023, determining that Ms. Su is lawfully serving as acting 
secretary under the Deputy Secretary of Labor statute.\19\ GAO 
further determined that the Vacancies Act's time limitations do 
not apply to Acting Secretary Su's service because of the 
Deputy Secretary of Labor statute. GAO concluded that, as 
Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary 
until a successor is appointed. GAO's opinion demonstrates the 
need to enact H.R. 4957 to ensure clear time limitations apply 
to an Acting Secretary of Labor's service.
---------------------------------------------------------------------------
    \18\Letter from Chairwoman Foxx to the Hon. Gene L. Dodaro, U.S. 
Comptroller Gen., GAO (July 6, 2023), https://edworkforce.house.gov/
uploadedfiles/07.06.23_letter_to_gao_requesting_
a_legal_opinion_on_dol_acting_secretary_and_fvra16.pdf.
    \19\GAO, Decision, U.S. Department of Labor--Legality of Service of 
Acting Secretary of Labor, File B 335451 (Sept. 21, 2023), https://
www.gao.gov/assets/870/861240.pdf.
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             H.R. 4957, DEPARTMENT OF LABOR SUCCESSION ACT

    H.R. 4957 ensures the Deputy Secretary of Labor cannot 
serve indefinitely as the Acting Secretary of Labor by 
clarifying that the Vacancies Act is the statute governing a 
temporary vacancy within the office of Secretary of Labor.

                               CONCLUSION

    The ``forever'' nomination of Julie Su is a clear 
demonstration of why the tenure of an Acting Secretary of Labor 
must have time limitations. By exploiting the Deputy Secretary 
of Labor statute, the Biden administration is ignoring 
Congress' role in the confirmation process and is installing a 
nominee in a position that the Senate has been unwilling to 
grant her. Ensuring acting service in the position is temporary 
will bring accountability to federal bureaucrats, ensuring 
Congress and the American people have a say in who leads DOL. 
To those ends, H.R. 4957 will clarify federal law, uphold 
Congress's constitutional role of providing advice and consent, 
hold Julie Su accountable for her failed record, and rein in 
bureaucratic overreach.

                                Summary


                  H.R. 4957 SECTION-BY-SECTION SUMMARY

Section 1. Short title

    Section 1 provides the short title is ``Department of Labor 
Succession Act.''

Section 2. Applying the requirements of the Vacancies Act to a vacancy 
        in the office of Secretary of Labor

    Section 2 amends the Deputy Secretary of Labor statute to 
apply the requirements of the Vacancies Act to a vacancy in the 
office of the Secretary of Labor. Specifically, Section 2 
strikes the Deputy Secretary of Labor statute's provisions, 
which allow a Deputy Secretary of Labor to perform the duties 
of the Secretary of Labor (1) under the circumstances of the 
Secretary's death, resignation, or removal from office until a 
successor is appointed or (2) in the case of absence or 
sickness until these circumstances end. Section 2 then 
authorizes the Deputy Secretary to fill a vacancy in the office 
of Secretary of Labor in accordance with the Vacancies Act.

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)3 of Public Law 104-1 requires a description 
of the application of this bill to the legislative branch. H.R. 
4957 applies the Vacancies Act to a vacancy in the office of 
the Secretary of Labor and, therefore, does not affect the 
legislative branch.

                       Unfunded Mandate Statement

    Pursuant to Section 423 of the Congressional Budget and 
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended 
by Section 101(a)(2) of the Unfunded Mandates Reform Act of 
1995, Pub. L. No. 104-4), the Committee adopts as its own the 
cost estimate prepared by the Director of the Congressional 
Budget Office (CBO) pursuant to section 402 of the 
Congressional Budget and Impoundment Control Act of 1974.

                           Earmark Statement

    H.R. 4957 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                            Roll Call Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Statement of General Performance Goals and Objectives

    In accordance with clause (3)(c) of rule XIII of the Rules 
of the House of Representatives, the goal of H.R. 4957 is to 
end the use of the Deputy Secretary of Labor statute to evade 
the standards and time limitations of the Vacancies Act.

                    Duplication of Federal Programs

    No provision of H.R. 4957 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the committee's oversight findings and recommendations are 
reflected in the body of this report.

            Required Committee Hearing and Related Hearings

    In compliance with clause 3(c)(6) of rule XIII of the Rules 
of the House of Representatives, the following hearings held 
during the 118th Congress were used to develop or consider H.R. 
4957: on June 7, 2023, the Committee on Education and the 
Workforce held a hearing entitled ``Examining the Policies and 
Priorities of the Department of Labor.''

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 4957 from the Director of the 
Congressional Budget Office:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    H.R. 4957 would require the line of succession for the 
Secretary of Labor to be subject to the Federal Vacancies 
Reform Act of 1998, which limits who can serve as acting 
officer and the length of time a person can serve in that 
capacity. The bill would also designate the Deputy Secretary as 
the first assistant to the Secretary of Labor. CBO estimates 
that implementing the bill would have a negligible effect on 
salaries and expenses paid by the Department of Labor, which 
are subject to appropriation.
    The CBO staff contact for this estimate is Meredith Decker. 
The estimate was reviewed by Christina Hawley Anthony, Deputy 
Director of Budget Analysis.
                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 4957. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when, as with the present report, 
the committee adopts as its own the cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                         ACT OF APRIL 17, 1946


 AN ACT To establish an office of Under Secretary of Labor, and three 
 offices of Assistant Secretary of Labor, and to abolish the existing 
   office of Assistant Secretary of Labor and the existing office of 
                  Second Assistant Secretary of Labor.

   Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That there 
is hereby established in the Department of Labor the office of 
Deputy Secretary of Labor, which shall be filled by appointment 
by the President, by and with the advice and consent of the 
Senate. [The Deputy Secretary shall receive compensation at the 
rate of $10,000 a year and shall perform such duties as may be 
prescribed by the Secretary of Labor or required by law. The 
Deputy Secretary shall (1) in case of the death, resignation, 
or removal from office of the Secretary, perform the duties of 
the Secretary until a successor is appointed, and (2) in case 
of the absence or sickness of the Secretary, perform the duties 
of the Secretary until such absence or sickness shall 
terminate.] The Deputy Secretary is authorized to exercise the 
functions and perform the duties of the first assistant of the 
Secretary of Labor within the meaning of section 3345 of title 
5, United States Code, and shall perform such other duties as 
may be required by law or prescribed by the Secretary of Labor.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              INTRODUCTION

    Current law provides that the Deputy Secretary of Labor, a 
position filled by presidential appointment with the advice and 
consent of the Senate (a process abbreviated as PAS), shall 
perform the duties of the Secretary of Labor when the position 
becomes vacant. Reps. Kevin Kiley (R-CA) and Virginia Foxx (R-
NC) introduced H.R. 4957, the Department of Labor Succession 
Act, which would replace the law as it has stood for decades 
and sweep Secretary of Labor succession into a much more 
complicated federal succession law. This bill does not address 
any identifiable problem; rather, it is an attack on the 
current Deputy Secretary, Julie Su, to undermine her ability to 
continue serving as Acting Secretary of Labor.

                               BACKGROUND

Organic Act
    The U.S. Department of Labor (DOL) was established by the 
Act to Create a Department of Labor (1913 Act), which created 
the Secretary of Labor position and a lieutenant position 
titled the Assistant Secretary of Labor.\1\ The Assistant 
Secretary was presidentially appointed but not subject to 
Senate confirmation.\2\
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    \1\Act to Create a Department of Labor, Pub. L. No. 62-425, 
Sec. Sec. 1-2, 37 Stat. 736, 736-37 (1913).
    \2\Id.
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    The Assistant Secretary was replaced by the Act of April 
17, 1946 (1946 Act), with a new PAS position, the Under 
Secretary of Labor, which was charged with becoming the Acting 
Secretary of Labor when necessary:

          The Under Secretary shall (1) in case of the death, 
        resignation, or removal from office of the Secretary, 
        perform the duties of the Secretary until a successor 
        is appointed, and (2) in case of the absence or 
        sickness of the Secretary, perform the duties of the 
        Secretary until such absence or sickness shall 
        terminate.\3\
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    \3\Act of April 17, 1946, Pub. L. No. 79-346, Sec. 1, 60 Stat. 91 
(1946).

    The Department of Labor Executive Level Conforming 
Amendments of 1986 (1986 Amendments) preserved this office and 
its Acting Secretary function and simply retitled the position 
the Deputy Secretary of Labor.\4\
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    \4\Department of Labor Executive Level Conforming Amendments of 
1986, Pub. L. No. 99-619, Sec. 2(a), 100 Stat. 3491 (1986).
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    For convenience, we refer collectively to the 1913 Act, 
1946 Act, and related provisions codified together in chapter 
12 of title 29, U.S. Code, as the Organic Act.
Vacancies Act
    Since 1792, a series of laws has established a generic 
policy governing the succession of functions when certain 
federal offices become vacant.\5\ That policy was significantly 
updated in 1988 by the Presidential Transition Effectiveness 
Act (1988 Transition Act)\6\ and then overhauled ten years 
later by the Federal Vacancies Reform Act of 1998 (FVRA), which 
set out in chapter 33 of title 5, U.S. Code, an updated policy 
on succession of functions when some federal offices become 
vacant.\7\ For convenience, we refer to the resulting 
provisions of the law\8\ as the Vacancies Act.
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    \5\See Anne Joseph O'Connell, Admin. Conf. of U.S., Acting Agency 
Officials and Delegations of Authority 3 (2019) [hereinafter ACUS 
Report].
    \6\Presidential Transition Effectiveness Act, Pub. L. No. 100-398, 
Sec. 7, 102 Stat. 985 (1988).
    \7\Omnibus Consolidated and Emergency Supplemental Appropriations 
Act, 1999, Pub. L. No. 105-277, Div. C, Sec. 151, 112 Stat. 2681-611 
(1998) (5 U.S.C. Sec. 3301 note).
    \8\See 5 U.S.C. Sec. 3345 et seq.
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    When a PAS position becomes vacant, the Vacancies Act 
establishes requirements for temporarily authorizing an acting 
official to perform the functions and duties of the vacant 
position.\9\ Among other things, the Vacancies Act allows for 
multiple parties to serve as acting officials for a PAS 
vacancy: the ``first assistant'' to that office; any senior 
agency official designated by the president to fill the 
vacancy, provided the official has worked at the agency for at 
least 90 days prior to the vacancy and is paid at least a GS-15 
on the federal pay scale; or any PAS officer, regardless of 
agency, designated by the president to serve in the acting 
role.\10\ The Vacancies Act has a complicated set of allowable 
tenures for the acting official, limited to 210-day spans or 
while a nomination is pending.\11\ The calculus for tenure 
becomes more complicated if a person is nominated multiple 
times to the office.\12\ The Vacancies Act does not, however, 
apply to PAS vacancies governed by a separate succession law, 
such as the Organic Act.\13\
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    \9\Id. Sec. Sec. 3345-3349d.
    \10\Id. Sec. 3345.
    \11\Id. Sec. 3346.
    \12\Valerie C. Brannon, Cong. Res. Serv., R44997, The Vacancies 
Act: A Legal Overview 13-15 (2022).
    \13\5 U.S.C. Sec. 3347.
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Current Acting Secretary of Labor
    Julie A. Su of California was nominated by President Biden 
and confirmed by a majority vote in the Senate in July 2021 to 
serve as the Deputy Secretary of Labor.\14\
---------------------------------------------------------------------------
    \14\Press Release: Senate Confirms Julie Su to Serve as Deputy 
Secretary of Labor, U.S. Sen. Comm. on Health, Educ., Lab. & Pensions 
(July 13, 2021), https://www.help.senate.gov/chair/newsroom/press/
senate-confirms-julie-su-to-serve-as-deputy-secretary-of-labor-.
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    Secretary of Labor Martin J. Walsh resigned on March 11, 
2023, to lead the National Hockey League Players' 
Association.\15\ Pursuant to the Organic Act, Deputy Secretary 
Su then assumed the role of Acting Secretary of Labor.\16\
---------------------------------------------------------------------------
    \15\Gov't Accountability Off., B-335451, In re U.S. Department of 
Labor--Legality of Service of Acting Secretary of Labor (Sept. 21, 
2023), https://www.gao.gov/products/b-335451 [hereinafter GAO 
Decision]; NHLPA Executive Board Appoints Martin J. Walsh as Executive 
Director, NHLPA.COM (Feb. 16, 2023), https://www.nhlpa.com/news/1-
22447/nhlpa-executive-board-
appoints-martin-j-walsh-as-executive-director.
    \16\GAO Decision, supra note 15, at 2-4.
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    Ms. Su was also nominated in March to succeed Mr. Walsh as 
Secretary of Labor, and that nomination is still pending.\17\
---------------------------------------------------------------------------
    \17\Id. at 3.
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GAO Review
    Rep. Virginia Foxx, Chair of the House Committee on 
Education and the Workforce, requested a review by the 
Government Accountability Office (GAO) of the legality of Ms. 
Su's tenure as Acting Secretary of Labor.\18\ GAO concluded 
that the Vacancies Act does not govern the Deputy Secretary of 
Labor's function as Acting Secretary because the Organic Act 
governs instead.\19\ Accordingly, GAO determined that Ms. Su is 
lawfully serving as Acting Secretary of Labor and may continue 
to do so until a successor is appointed.\20\
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    \18\Id. at 1 n.1 & accompanying text.
    \19\See generally id.
    \20\Id. at 5.
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                               DISCUSSION

    This bill, H.R. 4957, would amend the Organic Act by 
eliminating the succession provision that allows the Deputy 
Secretary of Labor to serve as Acting Secretary and would 
instead bring Secretary of Labor succession under the Vacancies 
Act.
A Solution in Search of a Problem
    Current law already guarantees continuity in DOL's 
leadership subject to the most rigorous democratic protocols. 
The Organic Act ensures that a PAS position, the Deputy 
Secretary of Labor, is in line to serve immediately as Acting 
Secretary should a vacancy in the Secretary of Labor position 
occur. H.R. 4957 is simply not needed to protect the Senate's 
advice and consent role, because the Organic Act already 
respects it.
    There is nothing unusual about the current law of 
succession at DOL. The Organic Act's succession policy 
parallels the succession policies for the Secretaries of 
Defense, Education, Energy, Homeland Security, Transportation, 
the Treasury, and Veterans Affairs; the Attorney General; the 
Administrator of the Environmental Protection Agency; the 
Director of the Office of Management and Budget; and a myriad 
of sub-Cabinet and sub-sub-Cabinet offices, from the Chair of 
the Joint Chiefs of Staff to the Director of the U.S. 
Geological Survey--all of which are established in laws outside 
of the Vacancies Act.\21\
---------------------------------------------------------------------------
    \21\See ACUS Report, supra note 5, at 74-100 Tbl.18 (2019).
---------------------------------------------------------------------------
    Congress could have easily overridden the Organic Act 
succession policy at any point but, instead, opted to leave it 
in place. Aside from an essentially cosmetic change in the 1986 
Amendments, current law has been in place for 77 years. 
Congress had opportunities in the 1988 Transitions Act and 
1998's FVRA to revise the Organic Act and the laws for scores 
of other offices, and it demurred each time precisely because 
there is no problem with them.

Selective Outrage

    ``I like acting. It gives me more flexibility,'' President 
Trump said in 2019. ``Do you understand that? I like 
acting.''\22\
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    \22\Amanda Becker, Trump Says Acting Cabinet Members Give Him 
``More Flexibility'', Reuters (Jan. 6, 2019), https://www.reuters.com/
article/us-usa-trump-cabinet/trump-says-acting-
cabinet-members-give-him-more-flexibility-idUSKCN1P00IG.
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    He liked ``acting'' so much that his Administration 
violated vacancies law on multiple occasions. During the Trump 
Administration, GAO issued 10 letters finding violations of the 
Vacancies Act as well as an opinion about violations of the 
vacancies law for the Department of Homeland Security.\23\ A 
scholar reviewing President Trump's uses and abuses of acting 
officials found that in just three years President Trump had 
become a significant outlier:
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    \23\Letter from U.S. Gov't Accountability Off., Violation of the 
Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Deputy 
Administrator, Resilience, Directorate of Emergency Preparedness and 
Response, Federal Emergency Management Agency, to The President (Mar. 
4, 2021), https://www.gao.gov/assets/720/712806.pdf; Letter from U.S. 
Gov't Accountability Off., Violation of the Time Limit Imposed by the 
Federal Vacancies Reform Act of 1998: Administrator, Federal Transit 
Administration, to The President (Jan. 19, 2021), https://www.gao.gov/
assets/720/711951.pdf; Letter from U.S. Gov't Accountability Off., 
Violation of the Time Limit Imposed by the Federal Vacancies Reform Act 
of 1998: Assistant Secretary of State for the International 
Organization Affairs, U.S. Department of State (Jan. 19, 2021), https:/
/www.gao.gov/assets/720/711949.pdf; Letter from U.S. Gov't 
Accountability Off., Violation of the Time Limit Imposed by the Federal 
Vacancies Reform Act of 1998: Chief Financial Officer, U.S. 
Environmental Protection Agency (Dec. 15, 2020), https://www.gao.gov/
assets/720/711340.pdf; Letter from U.S. Gov't Accountability Off., 
Violation of the Time Limit Imposed by the Federal Vacancies Reform Act 
of 1998: President of the Government National Mortgage Association 
(Sept. 18, 2020), https://www.gao.gov/assets/710/709982.pdf; Letter 
from U.S. Gov't Accountability Off., Violation of the Time Limit 
Imposed by the Federal Vacancies Reform Act of 1998: Assistant 
Secretary of Defense for International Security Affairs, Department of 
Defense (Sept. 15, 2020), https://www.gao.gov/assets/710/709984.pdf; 
Letter from U.S. Gov't Accountability Off., Violation of the Time Limit 
Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, 
Export-Import Bank of the United States (Jan. 27, 2020), https://
www.gao.gov/assets/710/704433.pdf; Letter from U.S. Gov't 
Accountability Off., Violation of the Time Limit Imposed by the Federal 
Vacancies Reform Act of 1998: Inspector General, Tennessee Valley 
Authority (Aug. 6, 2019), https://www.gao.gov/assets/b-331027.pdf; 
Letter from U.S. Gov't Accountability Off., Violation of the Time Limit 
Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, 
Department of Housing and Urban Development (May 9, 2018), https://
www.gao.gov/assets/b-329918.pdf; Letter from U.S. Gov't Accountability 
Off., Violation of the Time Limit Imposed by the Federal Vacancies 
Reform Act of 1998: Commissioner, Social Security Administration (Mar. 
6, 2018), https://www.gao.gov/assets/b-329853.pdf; U.S. Gov't 
Accountability Off., GAO B-331650, Decision: Department of Homeland 
Security--Legality of Service of Acting Secretary of Homeland Security 
and Service of Senior Official Performing the Duties of Deputy 
Secretary of Homeland Security (Aug. 14, 2020), https://www.gao.gov/
assets/710/708830.pdf.

          First, he alone has used more acting secretaries than 
        confirmed secretaries, as of January 19, 2020. In 
        addition, while almost all of his acting secretaries 
        served at least ten days, only President Trump faced a 
        Senate controlled by their party during the entire 
        period being analyzed. Finally, President Trump has 
        often turned to acting officials outside his first 
        year, unlike previous presidents. For instance, while 
        President Trump relied on six--or five, if you exclude 
        [Rod] Rosenstein's reported one-day tenure [as Acting 
        Attorney General] before the White House picked 
        [Matthew] Whitaker--in his second year, Presidents 
        George H.W. Bush and Clinton relied on two, Presidents 
        Reagan and George W. Bush used only one, and President 
        Obama had none. The number increased to nine in 
        President Trump's third year. While President George 
        H.W. Bush had six acting secretaries in his third year, 
        President Reagan relied on three, President George W. 
        Bush had two, and Presidents Clinton and Obama used 
        one.\24\
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    \24\Anne Joseph O'Connell, Actings, 120 Colum. L. Rev. 613, 643-44 
(2020).

    We do not recall criticisms from our Republican colleagues 
of President Trump's violations of federal vacancies law. 
Instead, they offer this bill, a challenge to the authority of 
an Acting Secretary of Labor who is doing the job she was 
appointed by the President to do, and confirmed by the Senate 
to do, under a law that allows her to do it.

An Attack on an Effective Leader

    The law was certainly clear when Ms. Su was nominated and 
confirmed to the Deputy Secretary position that she would be 
next in line if, as happened, then-Secretary of Labor Walsh 
opted to leave office. The possibility of her rise to the role 
of Acting Secretary could not have been a surprise. What is 
surprising is this bill, an attack on one of the most qualified 
persons ever tapped to lead DOL.
    Acting Secretary Su is a champion for working people. Her 
litigation for Thai garment workers working in conditions of 
slave labor in California sparked an entire movement for 
change.\25\ Her innovative legal theory protected their right 
to remain in the U.S. as they brought their case, and it led to 
federal legislation creating a new ``T'' visa to protect people 
who have been trafficked.\26\ Her leadership transformed the 
labor standards agency in California and reoriented it in the 
direction of strategic enforcement.\27\ She issued record-
setting citations to address wage theft in low-wage industries 
and challenged the misclassification of thousands of workers, 
including port truck drivers who finally had their wage theft 
claims heard.\28\ As the leader of California's Labor and 
Workforce Development Agency, she implemented pandemic-era 
unemployment assistance as Congress designed it and, when fraud 
surfaced, she developed bold solutions that stopped tens of 
billions in fraudulent payments and served as a model for other 
states.\29\
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    \25\Scott Cummings, Hemmed In: Legal Mobilization in the Los 
Angeles Anti-Sweatshop Movement, 30 Berkely J. Emp. & Lab. L. 1, 40 
(2009) (describing how success of the Thai garment workers litigation 
fueled a litigation campaign targeting the garment industry).
    \26\El Monte Sweatshop: Operation, Raid, and Legacy: Legacy, 
Smithsonian, https://www.si.edu/spotlight/el-monte-sweatshop/legacy 
(last viewed Sept. 28, 2023).
    \27\Julie A. Su, Enforcing Labor Laws: Wage Theft, the Myth of 
Neutrality, and Agency Transformation, 37 Berkeley J. Emp. & LAB. L. 
143 (2016); Office of the Secretary: Acting Secretary of Labor Julie A. 
Su, Dep't of Lab., https://www.dol.gov/agencies/osec (last viewed Sept. 
28, 2023); Vivin Qiang & Michelle Boykins, Asian Americans Advancing 
Justice Urges Biden to Appoint Julie Su as U.S. Secretary for the 
Department of Labor, Asian Americans Advancing Justice (Feb. 10, 2023), 
https://www.advancingjustice-aajc.org/press-release/asian-americans-
advancing-justice-urges-biden-appoint-julie-su-us-
secretary#::text=As%20the%20former%20
Litigation%20Director,for%20victims%20of%20human%20trafficking. 
(stating that Su's advocacy led to ``sweeping changes in our country's 
labor laws'').
    \28\David Shepard & Lisa Baertlein, Acting US Labor Chief Su 
Opponents Undeterred After Port Worker Deal, Reuters (June 27, 2023), 
https://www.reuters.com/world/us/acting-us-labor-chief-su-opponents-
undeterred-after-port-worker-deal-2023-06-27/.
    \29\Transcript of Confirmation Hearing, Nomination of Julie Su to 
Serve as Deputy Secretary of Labor, at 5 (Mar. 16, 2021).
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    Her record of accomplishment for working people continues 
at DOL. As Deputy Secretary, she collaborated with then-
Secretary of Labor Walsh to negotiate an agreement between rail 
carriers and rail workers, and as Acting Secretary she helped 
broker a deal between shippers and West Coast dockyard 
workers--in each case, averting a shutdown of goods movement 
that could have had devastating consequences for the U.S. 
economy.\30\ Since she became Acting Secretary, DOL has moved 
swiftly to improve standards to protect miners from deadly 
silica exposures,\31\ strengthen safeguards for vulnerable 
migrant farmworkers,\32\ and update overtime rules.\33\
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    \30\Brett Samuels, Biden Praises Su for Role in Reaching Labor 
Agreement at West Coast Ports, The Hill (June 15, 2023), https://
thehill.com/homenews/administration/4051192-biden-praises-su-for-role-
in-reaching-labor-agreement-at-west-coast-ports/; Seung Min Kim & Zeke 
Miller, Biden Plans to Nominate Julie Su as Next Labor Secretary After 
Crucial Negotiations to Avert Devastating Railroad Strike, Fortune 
(Feb. 28, 2023), https://fortune.com/2023/02/28/biden-labor-secretary-
julie-su-marty-walsh-nominate/.
    \31\Lowering Miners' Exposure to Respirable Crystalline Silica and 
Improving Respiratory Protection, 88 Fed. Reg. 44852 (July 13, 2023).
    \32\Improving Protections for Workers in Temporary Agricultural 
Employment in the United States, 88 Fed. Reg. 63750 (Sept. 15, 2023).
    \33\Defining and Delimiting the Exemptions for Executive, 
Administrative, Professional, Outside Sales, and Computer Employees, 88 
Fed. Reg. 62152 (Nov. 7, 2023).
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    In short, Acting Secretary Su is an effective leader. Low-
road employers who profit from the exploitation of low-wage 
workers may as a result fear her continued leadership of DOL, 
but America's workers need her to continue to do the job that 
the law requires of the person in that role.

Real Problems Being Ignored

    Sadly, this is the very first labor bill the Committee has 
marked up since the Republicans took control in January. 
Ranking Member Scott and Workforce Protections Subcommittee 
Ranking Member Adams have asked twice for this Committee to 
hold a hearing on the crisis of child labor and consider the 
legislation offered to solve that crisis.\34\ Democratic 
members also have been pressing for action to raise the minimum 
wage, address heat stress, expand protections for workers to 
exercise their rights to join a union and bargain collectively, 
and much more.\35\ Instead of addressing the very real problems 
that America's working families face, the Committee reported a 
bill attacking Acting Secretary of Labor Julie Su, choosing to 
play politics rather than address real priorities.
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    \34\See Letter from Reps. Robert C. ``Bobby'' Scott & Alma S. Adams 
to Rep. Virginia Foxx (Sept. 13, 2023), https://democrats-
edworkforce.house.gov/download/scott-adams-second-letter-to-foxx-re-
request-for-child-labor-hearing; Letter from Reps. Robert C. ``Bobby'' 
Scott & Alma S. Adams to Rep. Virginia Foxx, (June 6, 2023), https://
democrats-edworkforce.house.gov/download/scott-adams-letter-to-foxx-re-
request-for-child-labor-hearing.
    \35\See, e.g., Asuncion Valdivia Heat Illness, Injury, and Fatality 
Prevention Act of 2023, H.R. 4897, 118th Cong. (2023); Protecting 
America's Workers Act, H.R. 2998, 118th Cong. (2023); Protecting 
Children Act, H.R. 4440, 118th Cong. (2023); Protecting the Right to 
Organize Act of 2023, H.R. 20, 118th Cong. (2023); Raise the Wage Act, 
H.R. 3264, 118th Cong. (2023); Wage Theft Prevention and Wage Recovery 
Act, H.R. 5402, 118th Cong. (2023); Workplace Violence Prevention for 
Health Care and Social Service Workers Act, H.R. 2663, 118th Cong. 
(2023).
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                               CONCLUSION

    For the reasons stated above, Committee Democrats 
unanimously opposed H.R. 4957 when the Committee on Education 
and the Workforce considered it on September 14, 2023. We urge 
the House of Representatives to do the same.

                                   Robert C. ``Bobby'' Scott,
                                           Ranking Member.
                                   Raul M. Grijalva.
                                   Joe Courtney.
                                   Frederica S. Wilson.
                                   Suzanne Bonamici.
                                   Mark Takano.
                                   Alma S. Adams.
                                   Mark DeSaulnier.
                                   Pramila Jayapal.
                                   Jahana Hayes.

                                  [all]