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Manchin, Sinema, Kelly sink Biden labor nominee
Source: Politico
David Weil’s bid to head the Labor Department’s Wage and Hour Division was dealt a fatal blow Wednesday, after a trio of Senate Democrats voted against moving forward on his nomination.
Weil, now the first Biden nominee to fail on the Senate floor, has faced heated opposition from Republicans and business groups dating back to his prior stint in the position for the Obama administration, meaning that he’d have likely needed unified Democratic support. The fate of the vote was still up in the air throughout Wednesday, as several key Democrats had been cagey about where they stood on Weil in recent days.
The details: Arizona Sens. Kyrsten Sinema and Mark Kelly and Sen. Joe Manchin, three of the caucus’ moderates, voted against the procedural vote. The final vote count was 47-53 against invoking cloture.
Weil’s defeat on the Senate floor is a major defeat for the Biden administration, which has prided itself on its labor agenda, and for Senate Majority Leader Chuck Schumer, as leaders typically do not move items if they do not have the votes to pass.
Weil, now the first Biden nominee to fail on the Senate floor, has faced heated opposition from Republicans and business groups dating back to his prior stint in the position for the Obama administration, meaning that he’d have likely needed unified Democratic support. The fate of the vote was still up in the air throughout Wednesday, as several key Democrats had been cagey about where they stood on Weil in recent days.
The details: Arizona Sens. Kyrsten Sinema and Mark Kelly and Sen. Joe Manchin, three of the caucus’ moderates, voted against the procedural vote. The final vote count was 47-53 against invoking cloture.
Weil’s defeat on the Senate floor is a major defeat for the Biden administration, which has prided itself on its labor agenda, and for Senate Majority Leader Chuck Schumer, as leaders typically do not move items if they do not have the votes to pass.
Read more: https://www.politico.com/news/2022/03/30/david-weil-wage-hour-nom-senate-00021860
26 replies
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in the higher level positions, have someone who is "Acting" including this one - https://www.dol.gov/agencies/whd/about/leadership/deputy-administrator
Acting Administrator Jessica Looman
Jessica Looman
Jessica Looman has served as the Acting Administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor since June 21, 2021. She was appointed as the Principal Deputy Administrator of WHD on January 20, 2021. WHD enforces worker protections and provides outreach and education about federal labor laws including minimum wage, overtime, child labor, and family and medical leave for 148 million workers and nearly 10 million employers nationwide.
Before joining WHD, Jessica served as the Executive Director of the Minnesota State Building and Construction Trades Council, where she advocated to expand construction career pathways, protected the physical and financial health of union construction workers, and increased private and public investment in construction infrastructure.
Before joining the Building Trades, Governor Mark Dayton appointed Jessica to serve as Commissioner of the Minnesota Department of Commerce. She also served as the Deputy Commissioner and the Assistant Commissioner for the Minnesota Department of Labor and Industry where she oversaw the strategic coordination of DLI’s five divisions. She has previously served as the General Counsel of the Laborers District Council of Minnesota and North Dakota.
Jessica is a graduate of George Washington University and the University of Minnesota Law School. She lives in St. Paul, Minnesota with her husband and two sons.
Jessica Looman
Jessica Looman has served as the Acting Administrator of the Wage and Hour Division (WHD) of the U.S. Department of Labor since June 21, 2021. She was appointed as the Principal Deputy Administrator of WHD on January 20, 2021. WHD enforces worker protections and provides outreach and education about federal labor laws including minimum wage, overtime, child labor, and family and medical leave for 148 million workers and nearly 10 million employers nationwide.
Before joining WHD, Jessica served as the Executive Director of the Minnesota State Building and Construction Trades Council, where she advocated to expand construction career pathways, protected the physical and financial health of union construction workers, and increased private and public investment in construction infrastructure.
Before joining the Building Trades, Governor Mark Dayton appointed Jessica to serve as Commissioner of the Minnesota Department of Commerce. She also served as the Deputy Commissioner and the Assistant Commissioner for the Minnesota Department of Labor and Industry where she oversaw the strategic coordination of DLI’s five divisions. She has previously served as the General Counsel of the Laborers District Council of Minnesota and North Dakota.
Jessica is a graduate of George Washington University and the University of Minnesota Law School. She lives in St. Paul, Minnesota with her husband and two sons.
Here was some info on her just prior to this current detail - https://news.bloomberglaw.com/daily-labor-report/biden-acting-wage-chief-looman-steers-agency-to-enforcement-mode
So she has been in that role since last June and the issue is that this level of acting (on detail) can usually only hold that position for a certain amount of time (I believe 240 hours) unless an official appointee has been named and is undergoing the confirmation process, and their detail can be extended while that plays out.
Her original position was not one that required a Senate confirmation after appointment per this (PDF) - https://www.everycrsreport.com/files/2021-12-28_RL30959_6d0d6e63f911075d984705eff1cbef0cedec4fce.pdf
What applies here are the provisions of the 1998 "Vacancies Act" - (good summary PDF here - https://fas.org/sgp/crs/misc/R44997.pdf)
The Vacancies Act: A Legal Overview
Congressional Research Service
Summary
The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive
means by which a government employee may temporarily perform the functions and duties of a
vacant advice-and-consent position in an executive agency. Unless an acting officer is serving in
compliance with the Vacancies Act, any attempt to perform the functions and duties of that office
will have no force or effect.
The Vacancies Act limits a government employee’s ability to serve as an acting officer in two
primary ways. First, the Vacancies Act provides that only three classes of people may serve
temporarily in an advice-and-consent position. As a default rule, the first assistant to a position
automatically becomes the acting officer. Alternatively, the President may direct either a senior
official of the agency or a person serving in any other advice-and-consent position to serve as the
acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting
officer: a person may serve either (1) for a limited time period running from the date that the
vacancy occurred or (2) during the pendency of a nomination to that office, with some extensions
if the nomination is rejected, withdrawn, or returned. The Vacancies Act is primarily enforced
when a person who has been injured by an agency’s action challenges the action based on the
theory that it was taken in contravention of the Act.
There are, however, a few key limitations on the scope of the Vacancies Act. Notably, the
Vacancies Act has largely been interpreted to govern the ability of a person to perform only those
functions and duties of an office that are nondelegable. Unless a statute or regulation expressly
specifies that a duty must be performed by the absent officer, that duty may likely be delegated to
another government employee. In other words, delegable job responsibilities are outside the
purview of the Vacancies Act. In addition, if another statute expressly authorizes acting service,
that other statute may render the Vacancies Act nonexclusive, or possibly even inapplicable.
This report first describes how the Vacancies Act operates and outlines its scope, identifying
when the Vacancies Act applies to a given office and which offices are exempt from its
provisions. The report then explains who may serve as an acting officer and for how long,
focusing on the limitations the Vacancies Act places on acting service. Next, the report discusses
the Vacancies Act’s enforcement mechanisms. Finally, the report turns to evolving legal issues
regarding the application of the Vacancies Act, including a discussion of how other federal laws
may limit the Act’s reach. Specifically, the report concludes by examining the interaction of the
Vacancies Act with agency-specific statutes, the ability to delegate the duties of a vacant office,
and constitutional considerations.
(snip)
Congressional Research Service
Summary
The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive
means by which a government employee may temporarily perform the functions and duties of a
vacant advice-and-consent position in an executive agency. Unless an acting officer is serving in
compliance with the Vacancies Act, any attempt to perform the functions and duties of that office
will have no force or effect.
The Vacancies Act limits a government employee’s ability to serve as an acting officer in two
primary ways. First, the Vacancies Act provides that only three classes of people may serve
temporarily in an advice-and-consent position. As a default rule, the first assistant to a position
automatically becomes the acting officer. Alternatively, the President may direct either a senior
official of the agency or a person serving in any other advice-and-consent position to serve as the
acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting
officer: a person may serve either (1) for a limited time period running from the date that the
vacancy occurred or (2) during the pendency of a nomination to that office, with some extensions
if the nomination is rejected, withdrawn, or returned. The Vacancies Act is primarily enforced
when a person who has been injured by an agency’s action challenges the action based on the
theory that it was taken in contravention of the Act.
There are, however, a few key limitations on the scope of the Vacancies Act. Notably, the
Vacancies Act has largely been interpreted to govern the ability of a person to perform only those
functions and duties of an office that are nondelegable. Unless a statute or regulation expressly
specifies that a duty must be performed by the absent officer, that duty may likely be delegated to
another government employee. In other words, delegable job responsibilities are outside the
purview of the Vacancies Act. In addition, if another statute expressly authorizes acting service,
that other statute may render the Vacancies Act nonexclusive, or possibly even inapplicable.
This report first describes how the Vacancies Act operates and outlines its scope, identifying
when the Vacancies Act applies to a given office and which offices are exempt from its
provisions. The report then explains who may serve as an acting officer and for how long,
focusing on the limitations the Vacancies Act places on acting service. Next, the report discusses
the Vacancies Act’s enforcement mechanisms. Finally, the report turns to evolving legal issues
regarding the application of the Vacancies Act, including a discussion of how other federal laws
may limit the Act’s reach. Specifically, the report concludes by examining the interaction of the
Vacancies Act with agency-specific statutes, the ability to delegate the duties of a vacant office,
and constitutional considerations.
(snip)
And it was the above that the previous administration ran afoul in violating (and lost in court for doing that).
However now that the official appointee appears to have had their confirmation fail due to not reaching the 51 vote Senate threshold for cloture to move to a full floor vote, some quick actions will need to happen to keep continuity.
Am not sure if Biden can have her detail extended again (assuming a new nominee is submitted quickly) or he might need to detail someone else as acting to start the clock over again. Alternately, if there is an individual who has already been Senate-confirmed, either in DOL or another Department (who has similar experience), that person could be transferred into the position without too much of a hassle.
Here is a good little discussion on the "appointment" strategies - https://federalnewsnetwork.com/commentary/2020/12/staffing-a-new-administration-worry-about-senate-confirmed-jobs-later/
... Biden wants to respect the Advise and Consent responsibility, but this is getting silly... we're over a year into the Biden Admin. If there are any unfilled positions, we should appoint people and fill them until the Senate decides to act... they should work weekends and stop all vacation time until their job is completed.
