In its lawsuit , the DOJ accused SpaceX of only hiring U.S. citizens and green-card holders, thereby discriminating against asylees and refugees in hiring, an alleged violation of the Immigration and Nationality Act.
Musk denied the allegations and accused the government of weaponizing “the DOJ for political purposes.”
“SpaceX was told repeatedly that hiring anyone who was not a permanent resident of the United States would violate international arms trafficking law, which would be a criminal offense,” Musk wrote on X, formerly known as Twitter.
It’s uncertain if the DOJ is actually targeting SpaceX (more on that in a minute), but George Mason University economist Alex Tabarrok quickly found a problem with the DOJ's allegations.
“Do you know who else advertises that only US citizens can apply for a job?” Tabarrok asked. “The DOJ.”
Tabarrok even brought the receipts: a screenshot of the DOJ job website that explicitly states, “U.S. Citizenship is Required.”
The DOJ is suing @elonmusk and @SpaceX for focusing their hiring on US citizens and permanent residents.— Alex Tabarrok 🛡️ (@ATabarrok) August 26, 2023
Do you know who else advertises that only US citizens can apply for a job? The DOJ. https://t.co/EiGn95QYbY pic.twitter.com/Zo2KoocMSF
So, if Musk is discriminating against non-U.S. citizens in his hiring practices, so is the DOJ.
This makes the lawsuit prima facie absurd on one level. However, one could also argue that there could be good reasons to discriminate in hiring. And as is usually the case, for better or worse, the government gets to decide when it’s OK to discriminate and when it’s not OK.
And that’s where things get hazy.
Musk and others claim that companies such as SpaceX are legally required to hire U.S. citizens because of International Traffic in Arms Regulations, a federal regulatory framework designed to safeguard military-related technologies.
The DOJ disagrees. So who is right? It’s difficult to say, Tabarrok pointed out .
“The distinction, as I understand it, rests on the difference between US Persons and US Citizens,” he wrote on Marginal Revolution, “but [SpaceX is] 100% correct that the DoD frowns on non-citizens working for military related ventures.”
In other words, SpaceX appears to have been trying to comply with Department of Defense regulations by not using noncitizens in military-related work, and in doing so, it may have run afoul of the DOJ.
This brings me back to the question of whether the DOJ is acting in good faith with its lawsuit. We don’t know the answer, but the flimsy nature of this lawsuit and other evidence suggest Musk is indeed being hounded for political reasons.
After all, it’s not just the DOJ breathing down Musk’s neck. Federal Trade Commission Chairwoman Lina Khan has been obsessed with Musk since his purchase of Twitter, now X, going so far as to demand the company “identify all journalists and other members of the media to whom Twitter has granted access since Musk bought the company.”
How this demand sits with the spirit of the First Amendment, I’m not sure. But Khan claims her concerns stem from user privacy, which is rich since the FBI for years had been harvesting mass amounts of user data from Twitter. (The precise amount is unknown since the FBI hit X with a gag order when the company tried to publish details in its biannual Transparency Report.)
It’s certainly possible the FTC and DOJ are deeply concerned about user privacy data and noncitizens seeking employment with SpaceX. But it’s far likelier that their actions stem from Musk’s purchase of Twitter and subsequent publication of the Twitter Files , which revealed the FBI had been secretly controlling the flow of information on the platform.
Such an accusation might be hard for many people to believe. There’s a tendency to view the government as benevolent and upstanding, an institution filled with people seeking the common good and protecting the weak and the poor.
Yet economist Murray Rothbard long ago destroyed the myth that government is a “quasi-divine, selfless, Santa Claus organization.” In reality, it’s more like a mafia, one that will ruthlessly protect its own turf, especially against “dangers to its own contentment.”
The DOJ’s frivolous lawsuit is likely to go nowhere, but if Rothbard’s view of the state is right, it’s a safe bet that this will not be Musk’s last tussle with the syndicate.