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Elon Musk Sues Joe Biden’s Administration For Violating U.S. Constitution

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Elon Musk’s SpaceX fired back at President Joe Biden and sued the U.S. government claiming that the government’s case accusing the space leader of refusing to hire refugees and asylees violates the U.S. Constitution.

According to Law.com: “SpaceX’s lawsuit, filed Sept. 15 in the Northern District of Texas, targets Administrative Law Judge Carol Bell of the Office of the Chief Administrative Hearing Officer, who was assigned the discrimination case on Sept. 11, along with Chief Administrative Hearing Officer James McHenry and Attorney General Merrick Garland.

“The suit, which was surfaced by Law.com Radar, seeks an injunction derailing the government’s suit on constitutional grounds. For example, it says the matter should be adjudicated by Article III courts, rather than by an administrative law judge, and that the ALJ’s appointment was invalid because it wasn’t made by the president. SpaceX, represented by Akin Gump Strauss Hauer & Feld, also argues that the administrative process violates the company’s Seventh Amendment right to a trial by jury.”

Biden’s DOJ action against Musk alleges that SpaceX routinely discouraged asylees and refugees from applying and refused to hire or consider them, because of their citizenship status, in violation of the Immigration and Nationality Act (INA).

“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,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. 

“Our investigation also found that SpaceX recruiters and high-level officials took actions that actively discouraged asylees and refugees from seeking work opportunities at the company. 

“Asylees and refugees have overcome many obstacles in their lives, and unlawful employment discrimination based on their citizenship status should not be one of them.

“Through this lawsuit we will hold SpaceX accountable for its illegal employment practices and seek relief that allows asylees and refugees to fairly compete for job opportunities and contribute their talents to SpaceX’s workforce.”

DOJ issued a statement that said:

In job postings and public statements over several years, SpaceX wrongly claimed that under federal regulations known as “export control laws,” SpaceX could hire only U.S. citizens and lawful permanent residents, sometimes referred to as “green card holders.” Export control laws impose no such hiring restrictions.

Moreover, asylees’ and refugees’ permission to live and work in the United States does not expire, and they stand on equal footing with U.S. citizens and lawful permanent residents under export control laws.

Under these laws, companies like SpaceX can hire asylees and refugees for the same positions they would hire U.S. citizens and lawful permanent residents. And once hired, asylees and refugees can access export-controlled information and materials without additional government approval, just like U.S. citizens and lawful permanent residents.

The department’s lawsuit alleges that SpaceX discriminated against asylees and refugees based on citizenship status at multiple stages of the hiring process. For example:

SpaceX discouraged asylees and refugees from applying for open positions, through public announcements, job applications and other online recruiting communications that excluded asylees and refugees.

SpaceX failed to fairly consider applications submitted by asylees and refugees.

SpaceX refused to hire qualified asylee and refugee applicants and repeatedly rejected asylee and refugee applicants because of their citizenship status.

SpaceX hired only U.S. citizens and lawful permanent residents, from September 2018 to September 2020.

SpaceX recruits and hires for a variety of positions, including welders, cooks, crane operators, baristas and dishwashers, as well as information technology specialists, software engineers, business analysts, rocket engineers and marketing professionals. The jobs at issue in the lawsuit are not limited to those that require advanced degrees. 

Asylees and refugees are migrants to the United States who have fled persecution. To obtain their status, they undergo thorough vetting by the United States government. Under the INA, employers cannot discriminate against them in hiring, unless a law, regulation, executive order or government contract requires the employer to do so. In this instance, no law, regulation, executive order or government contract required or permitted SpaceX to engage in the widespread discrimination against asylees or refugees that the department’s investigation found, as explained in the complaint.

Because SpaceX works with certain goods, software, technology and technical data (referred to here as export-controlled items), SpaceX must comply with export control laws and regulations, including the International Traffic in Arms Regulations and the Export Administration Regulations. Under these regulations, asylees, refugees, lawful permanent residents, U.S. citizens and U.S. nationals working at U.S. companies can access export-controlled items without authorization from the U.S. government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than U.S. citizens or green card holders. Find more information here on how employers can avoid discrimination when complying with export control requirements.

The United States seeks fair consideration and back pay for asylees and refugees who were deterred or denied employment at SpaceX due to the alleged discrimination. The United States also seeks civil penalties in an amount to be determined by the court and policy changes to ensure it complies with the INA’s nondiscrimination mandate going forward.

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