Averted catastrophes are seldom big news, the asteroid whizzing near our planet being less compelling than the asteroid that will destroy it. So you may have missed the news last week that a shutdown of 29 West Coast ports didn’t happen because the Pacific Maritime Association, or PMA, signed a tentative labor agreement with the International Longshore and Warehouse Union, or ILWU. This occurred with the intervention of acting Labor Secretary Julie Su, whom Biden has nominated for labor secretary. Thirty-three Republican senators said thank you by urging President Joe Biden to withdraw Su’s nomination.
The ILWU never authorized a strike, but starting on June 2 the union engaged in a series of unofficial work slowdowns and other disruptions that caused notable delays. Back in April, dockworkers had staged a 24-hour shutdown in Los Angeles and Long Beach. That was a preview of things to come. On June 10, the PMA said, dockworkers managed to shut down operations in Seattle. (The ILWU, implausibly, denied it.) Had the slowdowns continued, or had the ILWU called a strike vote, the economy might well have tipped into recession. The Port of Los Angeles is the biggest in the country and, combined with Long Beach, accounts for nearly 40 percent of all container cargo arriving from Asia.
Su, who previously was labor secretary in California, kept abreast of negotiations over the past year, and when talks threatened to break down in June, Biden dispatched Su to California. Within a week the parties had arrived at a tentative agreement. The U.S. Chamber of Commerce thanked Su “for staying committed to the process and helping both parties reach this agreement.” The U.S. Chamber has taken no position on Su’s nomination, while the Los Angeles branch actually endorsed her.
“Julie’s engagement was key,” said Representative Robert Garcia, Democrat of Los Angeles and former Long Beach mayor. In a written statement, Biden said that Su “used her deep experience and judgment to keep the parties talking, working with them to reach an agreement after a long and sometimes acrimonious negotiation.”
To the U.S. Senate, though, none of this mattered. Su’s nomination remains in limbo because Senator Joe Manchin, Democrat of West Virginia, who’s contemplating an insane third-party bid for president in 2024, says privately that he won’t support her and is reportedly seeking other candidates for the job. Senator Jon Tester, Democrat of Montana, who is up for reelection next year, remains uncommitted and has questioned publicly whether Su’s nomination will come up for a vote. Independents Angus King and Kyrsten Sinema are uncommitted. Neither has spoken publicly about the nomination, but my guess is Sinema will vote “no.” If Su loses Manchin and Sinema but manages to hold onto Tester and King, she can still win confirmation. But that assumes support from Lisa Murkowski, Republican of Alaska, whom the White House is trying desperately to win over. It has not yet closed the sale.
The rap against Su is that she’s no Marty Walsh. Walsh, the previous labor secretary, vacated that position in February to become executive director of the NHL Players Association. Republicans and business groups liked Walsh because he was an absentee (he never moved down from Boston, where previously he was mayor) and was totally uninterested in policy matters, preferring instead to press the flesh with union locals around the country. (See my September piece, “The Surprisingly Disappointing Reign of Marty Walsh, Biden’s Labor Secretary.”) Su, by contrast, is a policy wonk who, as 94 nonprofits wrote in April to Senate HELP Committee Chairman Bernie Sanders, “has devoted her life to fighting for workers’ rights.” To Manchin and (probably) Sinema, that’s what’s wrong with her. Su’s principal liability is her association with California Assembly Bill 5, passed in 2019, which cracked down on the misclassification of workers as independent contractors. As labor secretary, Su was charged with enforcing A.B. 5. It’s Manchin’s evident belief that corporations should have a free hand to tell workers, “Congratulations, you’re an entrepreneur!” and thereby deny them Social Security and minimum wage.
It isn’t clear how long this can go on. President Donald Trump actually preferred his Cabinet secretaries to be “acting” because it spared him the nuisance of Senate confirmation. “It gives me more flexibility,” he said. The 1998 Federal Vacancies Reform Act places various time limits—typically 210 days—on how long a government position subject to Senate confirmation can be performed on an acting basis. But these limits get violated routinely, with no particular consequences. It won’t surprise you to hear that Trump violated them 13 times, according to the Government Accountability Office. But Biden has violated them no fewer than 10. Still, none of these violations involved a Cabinet secretary, which would be more controversial.
Another reason this can’t go on much longer is that it’s impeding the regulatory process. “The Labor Department and the White House are concerned that any policy actions by the department could harm Julie’s confirmation chances,” one former White House official told me. Probably the hottest potato is a regulation, put out for public comment in October but not yet finalized, establishing who may or may not be classified as an independent contractor. A regulation defining the fiduciary duties of brokers who advise customers on retirement savings is not yet out, even in proposed form. Nor is a regulation establishing who’s eligible for overtime pay that was expected in May. If Biden loses the White House and Democrats lose the Senate, any regulation that isn’t finalized by early next year may become vulnerable to cancellation under the fast-track provisions of the Congressional Review Act, Bloomberg’s Rebecca Rainey reported last month.
I seriously doubt Senators Tester, King, Sinema, or Murkowski can articulate a coherent case against confirming Su. Nor, for that matter, can Manchin, who’s seldom coherent about anything. If the economy isn’t in recession, that may be because Julie Su brought warring parties together last week on the labor contract for West Coast ports. That isn’t good enough for most Republicans, but it should be for any Democrat, or anybody who caucuses with the Democrats. Dear U.S. Senate: Please confirm Julie Su now.