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So Su Me?

We might have mentioned it before, and even if we haven't, many readers will know that when Apple Computer launched the Macintosh in 1984, the company was in breach of an agreement with the Beatles over the use of the name "Apple." Thanks to a deal hammered out in the 1970s, the computer company was allowed to use the name, but they couldn't go into the "recording business." The Macintosh could record and play sound, so... oops. Apple Computer knew it had breached, and so the original version of the Mac OS included a system sound called "Sosumi" (i.e., "So sue me"). The Beatles did, of course, and while the matter was resolved, the sound remained a part of the Mac OS until just last year, when they finally renamed it "Sonumi." Who knows what "So new me" means.

We could not help but think of that story thanks to the drama surrounding Secretary of Labor-designate Julie Su this week. Joe Biden chose her to replace Marty Walsh because while she's got some black marks on her record, she also has vast experience apropos the job, plus she spent two years working as Walsh's right-hand woman. Since being tapped for the big job, Su has twisted in the wind due to opposition to her nomination.

As a general rule, we tend to think presidents should be able to pick the subordinates they want to work with, assuming those folks are not corrupt, bigoted, etc. We also tend to think that Republicans should be allowed to choose as ultra-conservative a Secretary of Commerce as they want and Democrats should be allowed to choose as ultra-liberal a Secretary of Labor as they want. But we don't get a vote, and apparently Sens. Kyrsten Sinema (I-AZ) and Joe Manchin (D-WV) are opposed to Su. They join a unanimous Senate Republican Conference, where some members don't like outspoken liberals, some don't like women of color (ahem, Mr. Tuberville) and some are just taking a prime opportunity to poke Biden in the eye.

Anyhow, Su isn't likely to be confirmed. In fact, she's already set the record for longest pending nomination (5 months) when the White House and Senate are controlled by the same party. And yet, Biden is unwilling to move on from her. So, the White House announced this week that Su would stay on indefinitely as acting secretary. Donald Trump was, of course, famous for bending the rules about acting secretaries to their breaking points. However, Biden has some cover here, in that there is a Department of Labor rule adopted in 1946 that allows acting secretaries to stay on the job beyond the deadline imposed on acting secretaries in other departments. This rule exists so as to discourage management or labor from trying to "wait it out" if an acting secretary is arbitrating a labor dispute.

That said, it is somewhat unclear exactly how freely an acting secretary is allowed to exercise the powers and prerogatives of the office. To take one example, one that came up a number of times during the Trump years: Is an acting secretary in the line of succession or not? These things have largely not been dealt with by the courts, so nobody really knows what the answer is.

That said, the Su situation provides an opportunity for certain business interests, who don't particularly want to be told what to do by the federal government. Already, a lobbyist group that represents gig-based companies (DoorDash, Uber, etc.) is insisting that Su has no legal authority to issue rules about gig workers. This is not unlike the Donald Trump legal strategy—maybe you'll win in the end, and maybe you'll lose, but along the way try to throw up as many obstacles as is possible so as to put off an ultimate resolution. One suspects that if Jeff Bezos was Acting Secretary of Labor, and he issued a guideline instructing that gig workers should be treated like cattle, up to and including branding, that the gig-based companies would suddenly discover they are just fine with acting secretaries making decisions.

In any event, this is another item for the "it's really no fun to be president' file. Also, while kvetching about secretaries vs. acting secretaries is probably a little too inside baseball to be wielded as a campaign issue, all of this is going to serve to remind the business class that while they don't like Trumpism, they also don't like these pinko Democrats. The moneyed interests may very well sit 2024 out. (Z)

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