Republicans are furious that labor secretary is in line of presidential succession. Here’s why

President Julie Su?

Unlikely, but the acting U.S. secretary of labor is in the official line of succession to the presidency. And Republicans are furious.

Su, a former California cabinet official, has been in her current job for the past 14 months. She’s “acting” because she appears to lack the votes for Senate confirmation.

Many senators, including some Democrats, are reluctant to back Su because of her work as California’s Secretary of Labor and Workforce Development Agency under Gov. Gavin Newsom. Her agency was in charge of the chaotic, fraud-ridden unemployment claim process during the COVID pandemic.

She came to Washington in 2021 as deputy labor secretary. Now acting secretary, she’s 11th in line to succeed President Joe Biden, after Secretary of Commerce Gina Raimondo and just before Secretary of Health and Human Services, and former California congressman, Xavier Becerra.

No one holding an office other than vice president has ever succeeded a president during his term. Eight presidents died in office, and Richard Nixon resigned in 1974, the last president who did not serve his entire term.

Still, Republicans want Su out of the queue — and for that matter out of the job.

“It is unimaginable to think that this administration believes that someone who has neither been duly elected or confirmed by the Senate to the position of Secretary of Labor could be president of the United States,” said a letter to Biden from 30 Republican senators.

They sent the letter in October. The White House has not responded, and declined to comment for this story.

Who can succeed Biden?

An acting secretary can be part of the line of succession, though that’s not always been the case.

The 1886 Presidential Succession Act put cabinet members, but no congressional leaders, in line for the presidency depending on when their departments were created.

That law said a cabinet member was only in the queue if they were appointed by the president and confirmed by the Senate for their job.

In 1947, a new law retained the requirement that officers in the line of succession be confirmed by the Senate–but allowed someone confirmed for any position, not just the job of secretary, to be in the line of succession.

“Read literally, this means that the current act allows for acting secretaries to be in the line of succession as long as they are confirmed by the Senate for a post,” said the Continuity of Government Commission, a bipartisan group that included prominent scholars and former congressional and executive branch officials.

Currently, the line of succession has the vice president first, followed by the House Speaker and Senate President Pro Tem, Secretary of State is next, followed by Treasury, Defense, Justice, Interior and so on. If someone is not a natural born citizen or under 35 years old, they cannot qualify.

The Senate confirmed Su as deputy secretary of labor in 2021 by a 50-47 vote. While the Senate Health, Education, Labor and Pensions Committee approved her nomination as secretary in February by an 11-10 party-line vote, there has been no Senate confirmation vote this year and none appears imminent.

The continuity of government commission report noted that it “is not uncommon for a second in command to become acting secretary when the secretary leaves office. Though there is some dispute over this provision, the language clearly permits acting secretaries to be placed in the line of succession.”

The commission urged the law be changed. In 2009, it explicitly recommended removing acting secretaries from the line of succession. Among its reasons: In the days and even weeks after a new president is sworn in, many cabinet jobs whose nominees are awaiting confirmation are headed by acting secretaries and having an acting secretary means they have not been approved by the Senate.

“The Senate confirmation is a check,” said John Fortier, the commission’s executive director.

Fortier cited another potential problem. Suppose in a catastrophic situation, the secretary of state is unable to assume the presidency. Someone then becomes acting secretary of state. Would they become president ahead of a Senate-confirmed Treasury secretary? Yes, said Fortier.

Current law, he said, “could easily cause confusion.”

Katie Britt vs. Julie Su

There’s no confusion among Republicans. Last week, at a Senate committee hearing, Sen. Katie Britt, R-Alabama, grilled Su.

“Do you believe that if the need were to arise that you are currently eligible to assume the presidency under the Presidential Succession Act?”

Su responded, “Senator, it is the honor of a lifetime to have been nominated by the president to serve in his cabinet.”

“Absolutely,” Britt then said, “and do you believe that you are in the line of presidential succession?”

Su noted that prior to being nominated as secretary last year, she was confirmed by the Senate in 2021 as deputy secretary. “Then when my predecessor left, I became the acting secretary through the normal…” she said as Britt pressed her point.

“I’m aware and my question is, do you believe that you should be in the presidential line of succession? It’s just a yes or a no?” the senator asked.

Su would not say yes or no. “I mean, Senator, I put it this way, I serve at the pleasure of the president. I appreciate his confidence in me. We’ve spent some time here today talking about the work of the department and the important ways that we are,” she said.

Britt tried again. “Do you believe yes or no, that you should be … having not been confirmed to this position by the United States Senate? So just yes, you believe you should be able to succeed in the presidential line of succession if that were ever to happen or no, you believe you are not actually in that line of succession?”

Su did not say, and Britt finally gave up.

“I thought that that would be a really easy yes or no. And to me, it’s no. You haven’t been confirmed and therefore should not be in the line of succession,” the senator said.