I was a bit boggled when the US Justice Department announced it was going after Elon Musk’s SpaceX for alleged discriminatory hiring practices:
Image from SpaceX website.
The Justice Department recently filed a lawsuit against SpaceX, the California-based spacecraft manufacturer and satellite communications company founded by Elon Musk.
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.”
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 non-citizens in military-related work, and in doing so, it may have run afoul of the DOJ.
