It’s a story that is repeated in almost every Presidential administration: the President is forced to withdraw a controversial cabinet nominee because of unified opposition from the other party, as well as by some “centrist” members of the President’s own party. So, the President announces that the nomination will not go forward. Instead, this time the rejected nominee will remain as acting Secretary… indefinitely.
You’re probably thinking, what alternative universe is this in? Because in the one I inhabit, a cabinet secretary who fails to obtain a Senate confirmation cannot simply serve in the position as long as their President adds the adjective “acting” to their title. Well, federal law has a loophole allowing the President to get around the Senate confirmation provision in the Constitution, at least in the case of Acting Secretary of Labor Julie Su.
Biden can use this loophole because before her nomination for Secretary, Su was the Labor Department’s Deputy Secretary. Under the Federal Vacancies Reform Act, a Deputy Secretary can serve as acting secretary until a permanent Secretary is appointed, or for 210 days. However, the Department of Labor has a rule allowing an acting Secretary to serve indefinitely. Therefore, Biden thinks he can ignore the Senate and keep Su acting as Secretary for the rest of his term—even though she lacks the votes to be confirmed.
Republicans are discussing challenging the constitutionality of the Labor Department policy and they have a strong case. Anyone who reads the Constitution cannot help but notice that checks and balances between the three branches of government were one of the framers’ central concerns. The thirteen colonies rebelled against England, in part, because they saw their rights being abused by a monarch with absolute power and were determined to prevent a concentration of power in the new nation’s executive. This is why the Constitution not only divides federal power between the executive, legislative, and judicial branches, but gives each branch the power to restrain the other two.
So, while the President oversees the executive branch, which implements federal policies and administers federal laws, Congress writes those laws and appropriates the money required to implement them. Therefore, the executive branch cannot act without the approval of Congress, but Congress cannot itself enforce the laws or policies of the government. Of course, the federal courts are to ensure that the other two branches do not overstep the constitutional limitations on their power, while Congress has the power to limit the jurisdiction of federal courts, and judges must be nominated by the President and confirmed by the Senate.
One of the Constitution’s most significant checks on the President is the requirement that the President’s nominees for cabinet secretaries, ambassadors, federal judges, and other positions receive Senate confirmation before assuming the position. This requirement shows that the drafters understood that personnel is policy. Cabinet secretaries in particular have a great ability to shape the agenda of their agency; at times that ability may be greater than that of the President, who has to divide his time among the entire executive branch.
Without the requirement that cabinet secretaries be vetted and approved by the Senate, presidents may appoint individuals who are completely unqualified or who wish to use their position to promote a dangerous agenda that threatens Americans’ liberty and prosperity. Allowing the President to keep an acting Secretary onboard indefinitely, when that individual could not survive a Senate confirmation, makes a mockery of the Constitution’s requirement that President’s obtain the advice and consent of the Senate before swearing in a new cabinet secretary.
Some may say that since Su already received the Senate’s consent to serve as Deputy Secretary, she does not necessarily need to go through a separate vote to serve as Secretary. This argument ignores the clear distinction between a deputy and the person in charge. A deputy is accountable to the Secretary and has limited ability to set the agenda of the agency. The Secretary, in contrast, has much more autonomy and authority over department policies. Therefore, it is reasonable that some senators (such as Joe Manchin) who were willing to vote for her as deputy Secretary don’t support putting her in charge of the department.
The requirement that Presidents obtain the Senate’s advice and consent for cabinet nominations allows the Senate to stop the appointment of individuals with dangerous ideas. Julie Su certainly falls into that category. Su supports redefining gig workers as full-time employees. This would subject workers in the gig economy to government regulations and destroy the flexibility and autonomy that make working in the gig economy attractive to many. Su is also a proponent of “Environmental, Social and Governance (ESG)” investing. ESG proponents want corporations to base their investment decisions on climate change policies and other progressive priorities in addition to, or in place of, what will generate the highest returns for investors. ESG investing could harm millions of American workers by reducing the returns on investments of their pension funds. President Biden should accept that Su’s agenda does not have the support of the majority of the Senate and appoint someone with more reasonable views to serve as Labor Secretary.