Su can continue serving as acting Labor secretary indefinitely: GAO

Acting Labor Secretary Julie Su can continue serving as the interim head of the department indefinitely, even as her Senate confirmation remains in limbo, according to a report the Government Accountability Office (GAO) issued Thursday.

Su, who has been serving as acting secretary since former Labor Secretary Marty Walsh stepped down in March, was nominated by President Biden to officially take over the top job in late February. 

However, as her nomination languishes in the Senate amid pushback from several moderate lawmakers, the Biden administration has instead opted to leave Su in her position as acting Labor secretary indefinitely, Politico reported earlier this year.

The move has drawn pushback from Su’s critics, including House Education and the Workforce Committee Chairwoman Virginia Foxx (R-N.C.), who requested the GAO’s opinion on the matter in July.

The GAO concluded in Thursday’s report that Su’s tenure as acting Labor secretary does not fall under the Federal Vacancies Reform Act and is not subject to its time limitations. 

Since Su took over for Walsh while serving as deputy Labor secretary, her role as acting secretary is instead governed by another law that deals specifically with the vacancy of the Labor secretary, the GAO said.

This law does not include any time constraints on the acting Labor secretary’s tenure, other than to note that they shall “perform the duties of the Secretary until a successor is appointed.”

“As the Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary under section 552 until a successor is appointed,” Edda Emmanuelli Perez, the GAO’s general counsel, wrote. “The Vacancies Act’s time limitations do not apply to her service.”

In response to Thursday’s report, Foxx called for the passage of legislation to bring the Labor Department under the purview of the Federal Vacancies Reform Act.

“Despite not having the votes to be approved by the Senate, the Biden administration is keeping anti-worker Julie Su installed as the head of the Department of Labor,” Foxx said in a statement. “This situation is depriving Congress of its role in providing advice and consent on nominees, and it should never happen again.”