Congressional Republicans, opponents to Su's nomination, asked the GAO to look into whether she has the legal authority to indefinitely lead the department without Senate confirmation. Republicans from both the House and Senate have introduced bills to prevent Su and future labor secretary nominees from serving in an acting secretary capacity past 210 days, the standard for all Cabinet-level nominees under the Federal Vacancies Reform Act. Notably, the House Education and Workforce Committee on Sept. 14 advanced its bill, though a vote in the full House has yet to be scheduled.
In March, the Labor Department, in a filing with the GAO, said that Su, who was confirmed as deputy labor secretary in 2021, is leading the department in an acting capacity under a Labor Department-specific succession statute, which allows the deputy secretary to perform the duties of the secretary of labor.
The GAO in its Sept. 21 decision, noted that Section 552 of title 29 in the U.S. Code supersedes the Vacancies Act and provides that, if the secretary of labor resigns, the deputy secretary of labor shall perform the duties 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," the GAO said. "The Vacancies Act's time limitations do not apply to her service."
But while Su was given the greenlight to continue serving in an acting capacity, her official Senate confirmation is still uncertain.
No Republicans supported her confirmation as deputy labor secretary in 2021 and in July, Sen. Joe Manchin, D-W.Va., said he would not support her nomination this time around. That means to be confirmed, she would need all 50 remaining senators who caucus with the Democrats to support her and Vice President Kamala Harris to cast a tiebreaking vote.
Those who oppose her nomination have criticized her past work experience, specifically when she served as the secretary of the California Labor & Workforce Development Agency, and her previous support of a California law that classified more workers as employees instead of independent contractors.