Elon Musk’s space company has countersued President Joe Biden’s administration, alleging that its lawsuit against the company for refusing to hire refugees and asylees is unconstitutional.
In the new filing, the company claims that the case must be dismissed because it’s being overseen by an administrative judge.
The judge “was unconstitutionally appointed” and “is unconstitutionally insulated from presidential authority because she is protected by two layers of for-cause removal protections,” SpaceX states in its countersuit, filed in U.S. court in Texas.
Federal judges are typically appointed by the president, but administrative judges are appointed by the U.S. attorney general.
The administrative judges are still granted power that should only go to presidentially appointed judges, SpaceX claims in the lawsuit.
The company points to a 2022 ruling by a U.S. appeals court that found unconstitutional the rule that administrative judges can be removed only by a board, whose members themselves can be removed only by the president.
The judges “perform substantial executive functions,” the appeals court decision states.
“The president therefore must have sufficient control over the performance of their functions, and, by implication, he must be able to choose who holds the positions. Two layers of for-cause protection impede that control; Supreme Court precedent forbids such impediment,” it states.
Article II of the U.S. Constitution states that the president must “take care that the laws be faithfully executed,” and past Supreme Court rulings—including Myers v. United States—have found that presidents must be able to remove executive officers. The decision in another case, Free Enterprise Fund v. Public Company Oversight Board, made clear that the administrative judges’ buffer is unconstitutional, according to the appeals court decision.
The judges “are insulated from the President by at least two layers of for-cause protection from removal, which is unconstitutional under Free Enterprise Fund,” the decision states.
If the Biden administration case is allowed to move forward under the administrative law judge, the judge would oversee extensive discovery and make other decisions, including as to whether SpaceX did illegally discriminate against some applicants, SpaceX states in its countersuit.
That process isn’t only illegal under the 2022 decision, but it also would illegally deny SpaceX an opportunity for a trial by jury, the new filing claims.
“The ongoing proceedings violate SpaceX’s rights under the Seventh Amendment, because ‘Congress cannot eliminate a party’s Seventh Amendment right to a jury trial merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction in an administrative agency,’” SpaceX said, quoting from another court decision.
More on the Case
SpaceX consistently discouraged illegal immigrants who were granted asylum or refugee status from applying for jobs, and repeatedly didn’t hire those who still applied, according to the government’s lawsuit.“Our investigation found that SpaceX failed to fairly consider or hire asylees and refugees because of their citizenship status and imposed what amounted to a ban on their hire regardless of their qualification, in violation of federal law,” Kristen Clarke, assistant attorney general of the DOJ’s civil rights division, said in a statement.
The suit quoted Mr. Musk, who said in 2020 that “U.S. law requires at least a green card to be hired at SpaceX, as rockets are considered advanced weapons and technology.”
Recruiters used similar language at recruiting events and on forums.
SpaceX’s application, given to prospective workers, included a section for candidates to mark their status by selecting from options such as “U.S. citizen or national of the United States” and “asylee.” And internal codes enabled SpaceX officials to reject job candidates for being unauthorized to work or ineligible under the regulations, the government’s probe found. Among those rejected: an engineer who graduated from the Georgia Institute of Technology.
SpaceX creates rockets and other spacecraft, flying goods and delivering astronauts to the International Space Station. The company’s rocket has been chosen by NASA to fly astronauts to the moon.
In the new filing, SpaceX claims that it has hired hundreds of noncitizens and seeks to “hire the very best candidates for every job regardless of their citizenship status.”
At the same time, the International Traffic in Arms Regulations (ITAR) limit whom SpaceX can employ, with fines and criminal penalties possible if the company doesn’t comply.
Some of the people who say that they’re refugees or asylees aren’t, meaning that the DOJ’s requested relief, including compelling SpaceX to hire people harmed by the alleged discrimination, according to SpaceX, “could potentially expose SpaceX to penalties and other sanctions under U.S. Export Control Laws, including ITAR.”
