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Legality of Su’s Tenure Questioned as Nomination Withers

WASHINGTON – Today, Education and the Workforce Committee Chairwoman Virginia Foxx (R-NC) sent a letter to the Government Accountability Office (GAO) asking it to scrutinize the legality of Acting Secretary of Labor Julie Su’s ability to serve as an acting secretary for a prolonged period. Ms. Su began her tenure as Acting Secretary of Labor on March 11, 2023—117 days ago.

In the letter, Foxx writes: “[A]s her nomination to become the next Secretary of Labor continues to languish in the Senate, questions regarding the length of time she can remain the head of the Department of Labor need answers. Therefore, the Committee is examining the ability of an Acting Secretary of Labor to remain in office in accordance with the Federal Vacancies Reform Act of 1998.

The letter continues: “The Committee is aware of a potential conflict between two federal statutes regarding an Acting Secretary of Labor’s tenure: 1) the statute that created the position of Deputy Secretary of Labor and 2) the Vacancies Act. The Committee requests that the Government Accountability Office issue an opinion about what legal authority determines an Acting Secretary of Labor’s tenure in office and DOL’s adherence to that statute.

Foxx concludes by questioning GAO about Su’s authority to serve:
  • What legal authority governs Ms. Su’s acting service? Does 29 U.S.C. § 552 or the Vacancies Act govern Ms. Su’s acting service?
  • Does 29 U.S.C. § 552 provide authority, independent of the Vacancies Act, to designate an Acting Secretary of Labor? In other words, does this position qualify as a statutory provision that operates as an exception to the Vacancies Act’s exclusive authority, as described in 5 U.S.C. § 3347(a)(1)?
  • Is Ms. Su serving as Acting Secretary in compliance with the applicable governing legal authority? 
  • Are there time limitations on Ms. Su’s acting service, and if so, what are those limitations? 
Read the full letter here.
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