Biden to the Senate: So Su Me

West Virginia Sen. Joe Manchin last week announced his opposition to President Biden’s progressive Labor Secretary nominee Julie Su. Sorry, Senator. The White House says Ms. Su can lead the department even if the Senate won’t confirm her.

Mr. Biden nominated Ms. Su in March to replace Marty Walsh after he stepped down. The Senate confirmed Ms. Su as deputy secretary in July 2021 on a party-line vote. However, the secretary carries more clout, including the power to set the regulatory agenda, approve charges against businesses, and intervene in labor negotiations.

Ms. Su’s record as labor secretary in California doesn’t recommend her. She drove implementation of the state’s AB5 law, which reclassified independent contractors as employees, including truckers, nail salon workers and freelance writers. California voters partly repudiated the law in 2020 by voting to exempt Uber and many other gig workers.

She has also backed California’s Fast Recovery Act, which empowers a state board to dictate wages, benefits and work rules for fast-food restaurant workers. As Labor secretary, she could extend the Golden State’s command-and-control labor model nationwide, which is why Mr. Biden nominated her. It’s also why her nomination has languished in the Senate.

The White House now argues a DOL succession law lets the deputy secretary perform the duties of the Secretary “until a successor is appointed.” That would mean Ms. Su doesn’t need to be confirmed to the post. This is legally doubtful, as Louisiana Sen. Bill Cassidy explained in a letter to Mr. Biden on Wednesday.

The Federal Vacancies Reform Act “places limits on the amount of time—210 days—that an advice and consent position may be filled by an acting officer,” he notes. This limit was intended to “incentivize the President to submit nominations in a timely manner, but also to give the Senate ample opportunity to complete its constitutional mandate.”

The White House appears to be invoking the DOL succession law “to protect Ms. Su’s ability to serve as Acting Secretary, in perpetuity, even if she is unable to secure the votes required for Senate confirmation,” Mr. Cassidy writes. The Federal Vacancies Reform Act was intended to prevent Presidents from doing what Mr. Biden is now doing.

“It is my view that this use of the Succession Act violates the constitutional provision of advice and consent and would potentially open any DOL action under Julie Su’s leadership to legal challenges,” he adds. Businesses could argue in a challenge to a DOL forthcoming overtime rule or wage-and-hour charges that Ms. Su is serving illegitimately.

According to Mr. Cassidy’s letter, Ms. Su has waited for a floor vote longer than any cabinet level nominee when the Senate and White House were controlled by the same political party. If she lacks the votes to be confirmed, the President should nominate someone else. This would remove a legal cloud over her tenure that could jeopardize the department’s actions.

The President doesn’t mind Senate advice but he has a problem with consent. That’s another reason to reject Ms. Su’s nomination and for legal challenges if Mr. Biden persists in flouting the Senate.