DOJ Lawsuit Against SpaceX Aims to Create a Protected Class (Not You)
A Department of Justice (DOJ) lawsuit accusing Elon Musk’s SpaceX of discriminating against asylum seekers and refugees is another spasm of prosecutorial abuse by the Biden administration, with a troubling agenda to boot.
According to federal statute 8 U.S.C. 1324b(a)(4), “It is not an unfair immigration-related employment practice for a person or other entity to prefer to hire, recruit or refer an individual who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified.”
In layman’s language, if two or more applicants are equally qualified for a job an employer can choose the U.S. solely on the basis of citizenship. “What you can’t do is say no foreigners need apply and cull out everyone except USC’s prior to evaluating job qualifications,” says Matt O’Brien, director of investigations for FAIR’s legal arm, the Immigration Reform Law Institute.
“There is ample case law supporting this as constitutional and acceptable,” O’Brien notes. “However, the Left is attempting to erase all distinctions between citizens and everyone else. The reality is that most employers have been misled by DOJ and state equal opportunity agencies into believing they can’t in any way prefer U.S. citizens.”
Musk pointed out the government’s hypocrisy by tweeting a picture of a federal Bureau of Prisons job posting that stated U.S. citizenship is required as a condition of employment.
That said, SpaceX does present a special case. Virtually all of the tech used by Musk’s rocket company can be considered “protected weapons” under Export Administration Regulation (EAR) and International Trafficking in Arms Regulation (ITAR).
During the Cold War, hiring provisions were expanded to include naturalized citizens, green card holders and asylees with work authorization. Such allowances have become dangerous anachronisms as America’s adversaries exploit “legal pathways” into the U.S. to steal technology. (A House Select Committee last year published a report titled “U.S. National Security and Military/Commercial Concerns With the People’s Republic of China.” It’s 931 pages long.)
One would think jilted alien applicants would refrain from filing discrimination complaints. But given this administration’s flaccid immigration enforcement and its concerning ties to China and Russia there may no longer be any downside to playing the alien victim.
In any event, O’Brien says he would be surprised if SpaceX actually had a large number of qualified asylees and refugees applying for positions. This SpaceX recruitment ad explicitly states that the job is subject to ITAR requirements. “Only a small percentage of the current crop of asylees and refugees is going to come close to fitting this profile,” the former Immigration Court judge concluded.
Ultimately, the DOJ lawsuit could be an effort to force a court settlement that leads to a national consent decree declaring that asylum/refugee applicants are “protected persons” who can work in defense jobs covered by the EAR and ITAR. This would enable Biden & Co. to throw open the hiring portals without having to bother with legislative or regulatory changes. If successful, the gambit against SpaceX may also have the downrange effect of pressuring companies to file green card applications for any aliens they hire.
All of this is problematic for anyone who cares about the rule of law, border integrity or national security.