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SpaceX sues to get Justice’s discrimination suit thrown out on constitutional grounds

SpaceX on September 15, 2023 filed suit in Texas to get the Justice Department’s August 24th discrimination suit — which claims that the company discriminates against illegal aliens because it obeys State Department security regulations forbidding such hiring — thrown out on constitutional grounds.

From the complaint [pdf]:

But aside from being factually and legally insupportable, the government’s proceedings are unconstitutional for at least four reasons: (1) the administrative law judge (ALJ) adjudicating the government’s complaint was unconstitutionally appointed; (2) the ALJ is unconstitutionally insulated from Presidential authority because she is protected by two layers of for-cause removal protections; (3) the ALJ is unconstitutionally purporting to adjudicate SpaceX’s rights in an administrative proceeding rather than in federal court; and (4) the ALJ is unconstitutionally denying SpaceX its Seventh Amendment right to a jury trial.

The suit specific names two of these administrative judges, as well as attorney general Merrick Garland, as defendents. It also outlines in detail how SpaceX follows the State Department’s law protecting U.S. technology scrupulously, while hiring the most talented people of all races, including non-citizens after getting State Department permission. Even so, the company’s complaint focuses on the unconstitutionality of the Justice Department’s administrative attack, demanding its dismissal for these reasons alone.

As I noted when the Justice Department’s lawsuit was first announced,

This suit is utter garbage and puts SpaceX between a rock and a hard place. I guarantee if SpaceX had hired any illegal or refugee who was not yet a legal citizen, Biden’s State Department would have immediately sued it for violating other laws relating to ITAR (the export control laws mentioned) which try to prevent the theft of technology by foreign powers.

That SpaceX has chosen to fight this lawsuit first on constitutional grounds suggests the company has fundamentally come to the same conclusion. Musk has decided to fight back hard against Biden’s effort to squash him both politically and legally.

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  • David Eastman

    I’m happing to see them fighting back on the administrative judge angle. There has been a lot of progress on that front recently, and it would be awesome if SpaceX can add another nail to the coffin. I forget which agency the statistics were for, but an article on this subject a few months ago showed that the administrative judges decided in favor of their agency nearly 100% of the time, where it was more like 80% in actual constitutional courts. The most amazing, and/or disturbing, part of that article was the defenders of the process being unable to understand why that was viewed as a problem.

  • pzatchok

    Space X will probably not win on a constitutional issue because this is an administrative ruling.

    But it does help push the administration to relinquish.

  • James Street

    Elon Musk @elonmusk
    “I wake up
    there is another PSYOP”

  • Ferris

    pzatchok, it could be argued that the administrative ruling itself is unconstitutional. After all, the government should not be able to dictate to a business that a given person must be hired. This sort of power is completely outside of government’s constitutional responsibilities.

  • GeorgeC

    We could be on Mars by the time this case gets to trial. No joke.

  • pzatchok


    At one point the SC ruled that farmers could not grow their own feed crops for their own animals because it would destabilize the feed prices.

    Constitutional is what the government can get away with.

  • Ferris

    pzatchok, that may be true, but the point is that SpaceX would have a legitimate argument.

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