For those who accuse Congress of doing nothing, for the nation’s independent professionals, contractors, and small businesses, they have been doing quite a bit. Reps. Kevin Kiley (R-CA) and Virginia Foxx (R-NC), along with the members of the House Workforce and Education Subcommittee, have single-handedly taken down Biden’s nominee for Secretary of Labor, Julie Su. Kiley vowed back in March that he would, and through a systematic laying out the facts, alerting his fellow members of Congress to those facts, and hammering Su’s piss-poor record of accomplishments, including her wake of malfeasance and fraud from her tenure as California’s Labor Secretary, Kiley has rendered the nomination DOA.

Even Senate Minority Leader Mitch McConnell is holding the line on rejecting Su’s nomination and demanding that it be withdrawn.

Senate Democrats just made history. No Senate majority has taken longer to confirm a cabinet nominee from a president of their own party. Julie Su, President Biden’s pick to head the Labor Department, is too radical for the job. And it’s time for Democrats to admit it.

— Leader McConnell (@LeaderMcConnell) July 20, 2023

Leader McConnell made a floor speech on July 20,

For more than two years now, the Biden Administration has sent the Senate a steady stream of radical and unqualified nominees. That much is hardly news. But today, the President’s pick to serve as Secretary of Labor made an especially ignominious bit of history. Julie Su has now waited longer for confirmation by a Senate of the same party as the President than any previous cabinet nominee on record. Her nomination has spent four and a half months in limbo while Senate Democrats decide whether they can even muster a party-line confirmation vote. ‘We’re still taking input’ – That’s become some of our colleagues’ go-to line as they decide whether to hold their noses and vote this scandal-plagued left-wing activist onto the job…. Well, I’d suggest to our colleagues that there’s not too much that Ms. Su’s radical record has left to the imagination…. [I]n Washington, she’s worked overtime to give unions access to more of workers’ paychecks and veto power over fast-evolving industries where independent contractors and gig workers thrive…. American taxpayers have seen enough of Julie Su. When will Senate Democrats finally decide that they have, too?

Apparently, Senate Democrats and the Biden administration have decided that they want to keep Su around indefinitely. Whether through laziness or ideological doggedness, the Biden administration plans to leave Su in place as Acting Secretary of Labor until after the 2024 election, using a legal statute specific only to the Department of Labor, which is a problem in and of itself.

A 1946 law, amended in 1986, permits the deputy labor secretary, which Su served as under the previous head, to “perform the duties of the Secretary until a successor is appointed.” The rule is unique to the Labor Department — many other federal job openings are governed by the Vacancies Act, which requires replacements for certain federal agencies within a time constraint of 210 days.

We have achieved our goal of persuading the Senate to reject Julie Su for Secretary of Labor. The White House has acknowledged that Senators Sinema and Manchin are opposed; therefore, she won’t be confirmed.

So mission accomplished? Not quite: Biden has decided to keep Su at the helm of the Labor Department without being confirmed. As Bernie Sanders candidly explained, “I hope she has the votes to become the secretary. If not, of course, she should stay where she is.”

Even for Biden, this affront to the Constitution is stunning. I called out his lawlessness in no uncertain terms on the House Floor.

It is clear Julie Su lacks the votes for Senate confirmation. She faces bipartisan opposition.

The plan seems to be to cancel the vote and carry on with Su serving as Labor Secretary in an acting role in a blatant end run around the Constitution. pic.twitter.com/NG5dmmT1Ld

— Rep. Kevin Kiley (@RepKiley) July 18, 2023

Mr. Speaker, it has been nearly five months since President Biden nominated Julie Su to be Secretary of Labor. That nomination remains stalled. The Senate has declined to confirm her and she now faces bipartisan opposition. And yet, the president has not withdrawn her nomination. Worse yet, Su is continuing to serve as Secretary of Labor in an acting capacity despite the Senate declining to put her in that position.

It appears that this is now the plan. To simply cancel the vote and carry on as if she’d been confirmed. Su’s leading supporter in the Senate, Bernie Sanders, said as much. He said, “I hope she has the votes to become the Secretary. If not, of course, she should stay where she is. She’s doing a great job,” Sanders continued, “Why would you not?”

Well, why would you not? One simple reason is the Constitution. This is blatantly an end-run around the Constitution’s advise and consent requirement of Article 2, Section 2, Clause 2.

Kiley honed in with laser focus on why he knows that the Biden administration plans to plow ahead with their inaction of leaving Su in place as Acting Secretary of Labor without a confirmation vote.

As further evidence of the Biden administration’s plan to simply keep Su on indefinitely, with or without a vote, after months of Department of Labor Rulemaking being put on pause to spare Su negative press during the confirmation process, the wheels are now back in motion. The administration seems to be acknowledging that Su does not have the votes for confirmation, but again, plans to keep her at the helm of the Labor Department anyway.

The section of the Constitution Kiley referenced says,

[The President] …shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

But as we know, the Constitution is meaningless to this administration, and Kiley affirms this fact.

Now, this administration has a disturbing pattern of seeking to do by undemocratic means that which it cannot do by democratic means. For example, on the topic of student loan forgiveness, President Biden has said, “I don’t think I have the authority to do that,” and then, he went ahead and did it anyway by executive order. On the issue of independent contracting, Congress has declined to adopt the destructive ABC Test via the PRO Act, so the Labor Department is seeking to enact a functionally equivalent legal standard by rulemaking. But this here is the most brazen example yet. Having made the worst possible pick for Labor Secretary which the United States Senate is rightly rejecting, the president is trying to install his nominee as the permanent Secretary anyway.

The Education and Workforce Protections Committee has oversight over the Department of Labor and its funding. In a June 7 oversight hearing, Su was slated to request that Congress carve out another $1.5 billion for the DOL budget. Su was the one begging for more dollars, but as RedState reported, she made every attempt to dodge this hearing and had to be threatened with a subpoena by Education and Workforce Chairwoman Virginia Foxx.

The Committee tried time and time again to schedule Su’s appearance. This came after she repeatedly provided insufficient answers to the Committee’s oversight requests. Finally, under threat of subpoena, Su made her statutorily mandated trek to Capitol Hill so that the people’s elected representatives could conduct oversight of the DOL.

Su’s testimony did not go well, and in a July 19th floor speech and a July 20 blog post, Kiley reminded the Biden administration that if the House of Representatives chooses to tighten the purse strings, they can not only restrict Su’s action to try and insert her pro-Big Labor policies into the DOL rulemaking, but they can use the power of the purse to squeeze Su out of her acting position.

In light of the Biden move, he reminded the president that the department’s budget must through that committee.

“Biden couldn’t get the votes, so now he says a vote isn’t needed. The Constitution says otherwise,” Kiley said. “Congress controls the Labor Department’s funding. We will not let this lawlessness stand.”

Kiley further stated on his blog,

We’re using the same strategy to prevent the nationalization of AB 5, one of Newsom’s most odious “model” policies. In the Appropriations bill, I’ve secured an amendment directing “no funds may be made available” to enforce Biden/Su’s order attacking independent contractors.

I've secured an amendment in the Appropriations bill to prevent funds from being used to target independent contractors.

Congress must leverage the power of the purse to prevent policy modeled after #AB5 from destroying the livelihoods of independent contractors. pic.twitter.com/UXeeMAz6Bd

— Rep. Kevin Kiley (@RepKiley) July 21, 2023

Kiley also confirmed that a legal challenge is being mounted against the Biden administration, demanding that Su be removed. It is shameful that taxpayer dollars should continue to be wasted in this way, but as Kiley iterated, a disruption of the nation’s economic engines is imminent should they allow Su’s de facto confirmation to stand.

Biden’s plan to leave Julie Su as Acting Labor Secretary indefinitely is a disaster for small businesses.

Her policies are so far left that even a Democrat-controlled Senate doesn’t even have the votes to confirm her. pic.twitter.com/jFcxXL1DXn

— House Committee on Small Business (@HouseSmallBiz) July 25, 2023

Now, the student loan executive order, of course, was just struck down by the Supreme Court. But what the administration is attempting here is much more potentially disruptive. What is at issue is not just one policy, rather, it is every action the Department of Labor takes under Acting Secretary Su that will be put under a legal cloud.

Now, Su’s allies have tried to make a legal argument relating to the interplay of the Federal Vacancies Reform Act and the statute that created the position of Deputy Secretary of Labor. This argument is without merit. There is no statutory authority to have an acting secretary who has been nominated for permanent secretary continue serving indefinitely with or without confirmation, nor could there be, because any such statute would violate the Constitution.

Kiley and Education and Workforce Chairwoman Virginia Foxx are gathering their evidence, including employing the Government Accountability Office to weigh in on these meritless moves by the Biden administration.

Education and the Workforce Chair Virginia Foxx and I have sent a letter to Gene Dodaro, U.S. Comptroller General at the U.S. Government Accountability Office requesting an opinion on the legality of keeping Su at the head of Labor independently.

Kiley concluded his floor speech by pointing out the wasted time and resources already spent on this nomination and once again urged President Biden to withdraw her.

But none of this should be necessary. The White House and Julie Su have had every opportunity to persuade the Senate. They have had a nightly war room and daily arm twisting for months. It is well past time to withdraw the nomination and for the president to nominate a Labor Secretary who will be on the side of American workers.

It has been proven that Julie Su is not on the side of American workers, and even Democrat Senators recognize this and refuse to confirm her. Yet legal maneuvers are now being required to remove Su from her acting role.

It’s a shameful stance from a shameless administration.