[House Report 118-254]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-254
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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.
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\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.
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\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.
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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.
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\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\
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\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\
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\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\
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\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\
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\21\See ACUS Report, supra note 5, at 74-100 Tbl.18 (2019).
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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]