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Elon Musk

Will Elon Musk's Twitter Sex Jokes End the Administrative State?

SpaceX argues the federal agency trying to punish it for firing employees critical of Musk is itself unconstitutional.

Christian Britschgi | 1.17.2024 4:55 PM

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Elon Musk laughing against a dark background | Avalon/Newscom
(Avalon/Newscom)

Could Elon Musk's Twitter jokes about sexual harassment kickstart a chain of events that ends with large swaths of the administrative state being struck down by the courts? We're further along this timeline than you might think.

Earlier this month, SpaceX—where Musk is co-founder and CEO—filed a lawsuit in federal court against the National Labor Relations Board (NLRB) and its members arguing that the independent agency's insulation from presidential authority and its system for deciding labor disputes is unconstitutional.

The company's lawsuit came one day after the NLRB filed its own complaint against SpaceX for firing several employees who'd circulated an open letter demanding the company condemn Musk's "harmful Twitter behavior."

The harmful behavior mainly involved Musk joking about SpaceX's settlement of a sexual harassment claim against him brought by a former company employee, per reporting from The New York Times.

SpaceX claimed the employees' anti-Musk activism was disruptive and merited termination.

After being fired, the employees filed NLRB complaints, arguing SpaceX violated their rights under federal labor regulations. That eventually led to the board filing a complaint against SpaceX this January.

Like many independent federal agencies, the NLRB complaint against SpaceX will be heard by an administrative law judge who works for the agency. If SpaceX doesn't like the judge's decision, it has to appeal to NLRB members themselves.

Neither NLRB members nor its administrative law judges can be removed by the president at will. They can only be fired for cause. The agency also uses its adjudication process to set substantive policies that bind private parties.

"In effect, the NLRB is acting as the lawmaker, the prosecutor, the jury, the judge, and the appellate court before a company has a chance to get to a real court," says Oliver Dunford, an attorney at the Pacific Legal Foundation (PLF).

SpaceX's lawsuit argues that this whole setup is unconstitutional. The inability of the president to fire NLRB members and judges violates his constitutional powers to hire and fire "officers of the United States." Its adjudication process violates the Seventh Amendment's guarantee of jury trials. The fact that the NLRB prosecutes violations of policies it sets in front of its administrative law judges and hears appeals of those judges' decisions all violates due process guarantees.

SpaceX's arguments against the NLRB have implications for many other federal agencies that are structured the same way.

"To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional," one attorney told Bloomberg Law.

The U.S. Supreme Court is currently considering a case that challenges the Security and Exchange Commission's structure and adjudication process on similar grounds. PLF is suing the Consumer Product Safety Commission and the Environmental Protection Agency over related issues.

Claims that SpaceX's arguments would end the administrative state are overblown, says Dunford. Most federal administrative law judges are within the Social Security Administration dealing with questions about government benefits, he says.

That's much different than independent agencies that regulate private rights. It's when government bodies are telling private parties what to do, and punishing them for non-compliance, that due process and jury trial rights are relevant, argues Dunford.

Rent Free is a weekly newsletter from Christian Britschgi on urbanism and the fight for less regulation, more housing, more property rights, and more freedom in America's cities.

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NEXT: Want to Use Social Media? Utah Wants You to Hand Over Your ID.

Christian Britschgi is a reporter at Reason.

Elon MuskNLRBConstitutional InterpretationNew DealJuriesSexual Harassment
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  1. Idaho-Bob   1 year ago

    "To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional," one attorney told Bloomberg Law.

    Most of the Fed is unconstitutional. Duh.

    1. Nazi-Chipping Warlock   1 year ago

      "Sounds about right to me."

      1. JudyAllen   1 year ago (edited)

        Makes $140 to $180 per day online work and I received $16894 in one month online acting from home just in a few hours. I am a daily student and work simply for a few hours in my spare time. Everybody can get this job. For details.....
        open this web...… http://Www.Worktoday7.co

    2. The Last American Hero   1 year ago

      Now lookie here, we start sayin' this here fella is a free man, well next thing ya know slavery will be illegal.

      /Democrats circa 1850

  2. Chumby   1 year ago

    Her ass said yes, but her ass meant no

  3. Earth-based Human Skeptic   1 year ago

    Rocket man bad.
    - Any executive branch bureaucrat

  4. Dillinger   1 year ago

    >>"To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional," ~~ one attorney

    winner.

  5. InsaneTrollLogic   1 year ago

    "To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional," one attorney told Bloomberg Law.

    No shit, Sherlock. Now let's see Wickard overturned.

  6. But SkyNet is a Private Company   1 year ago

    Not the hero we need, not the one we deserve

    1. MrMxyzptlk   1 year ago

      He's the hero we have.

      1. Mister Mxyzptlk   1 year ago (edited)

        Do you even know who Mister Mxyzptlk is?

        Way to jack my screen name, pig fucker.

  7. Marshal   1 year ago

    There’s a much more important threat my to the administrative state, the Supreme Court is hearing Chevron case today.

    1. VULGAR MADMAN   1 year ago

      Let’s hope they care more about the constitution than not “rocking the boat.”

  8. Vernon Depner   1 year ago

    FYTW

  9. MWAocdoc   1 year ago

    "To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional"

    Yes, we ARE saying that! We've been saying that for decades. The government doesn't care ... they don't HAVE to ... they're the GOVERNMENT!

    1. VULGAR MADMAN   1 year ago

      Their not caring works until it doesn’t.

    2. Ersatz   1 year ago

      The government doesn’t care … they don’t HAVE to … they’re the GOVERNMENT!

  10. Rubbish!   1 year ago

    Where is the true Arthur Kirkland when we need him?
    "You’re unconstitutional! You’re unconstitutional! The whole government is unconstitutional! They’re unconstitutional!"
    https://youtu.be/S4NFjLiDxuw?si=5c2ivSkJ0TEvJBq9

    1. CE   1 year ago

      I think he sells a lot of knock-off goods to Costco now.

  11. Longtobefree   1 year ago

    “To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional”

    So, just in this one case, cite the constitutional authorization for the NLRB.

    1. Mickey Rat   1 year ago

      Which is an argument for why the federal judiciary would be reluctant to buy into that line of reasoning, as it would open a very large can of worms, but that is a political justification, not a legal one. It is not a rebuttal against the argument itself on the legal merits.

  12. Gaear Grimsrud   1 year ago

    Don't know much about this fellow. All of us libertarians are on Mastodon. And we put a flag on the moon in like 1968 or something. Or so I'm told. And what was SpaceX formerly known as?

    1. CE   1 year ago

      Mastodon? Is that the one formerly known as Mammoth?

    2. MrMxyzptlk   1 year ago

      I'm not on Mastadon. I'm not on Twitter either... I'm not on Facebook or MySpace. There are a bunch of new ones I don't know about that I'm not on either. I have no social media footprint. Well, I am on Amazon and use GMAIL so there is some tracking of my clicking going on.

      1. David K   1 year ago

        And you aren't Mister MRMXYZPTLK!

    3. Get To Da Chippah   1 year ago

      And what was SpaceX formerly known as?

      SpaceTwitter, of course.

    4. de9152c   1 year ago

      SpaceX has always been SpaceX. It's full name though is Space Exploration Technologies.

  13. I, Woodchipper   1 year ago

    "To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional," one attorney told Bloomberg Law.

    Bingo.
    Almost all of it. You are correct sir.

  14. TJJ2000   1 year ago

    Well someone needs to end the [Na]tional So[zi]alist Empire that conquered and destroyed the USA. One can sure hope the courts will actually do their job for once.

  15. KiwiDude   1 year ago

    "To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional,"

    Shirley the government wont end up saying that

    1. MrMxyzptlk   1 year ago

      Why not? And don't call me Shirley.

      1. Michael P   1 year ago

        If they argued that, they would run a very real risk of making it true. If they don't argue that, they can claim that the next case is somehow different than this one because reasons, and so the next agency's ALJs and procedures should not be thrown in the same waste bin as the NLRB's.

  16. CE   1 year ago

    It's called "employment at will."
    Feel free to criticize the boss publicly, but don't expect to keep working for him or her.

  17. DesigNate   1 year ago

    “"To say this structure itself violates the Constitution would be saying a large swath of the federal government is unconstitutional," one attorney told Bloomberg Law.“

    This is not news to me.

    Alternatively: Tell me something I don’t know, Mr. Lawyer.

  18. Rossami   1 year ago

    "To say this structure itself violates the Constitution would be saying" an obvious truth that's needed to be said for a long time.

  19. chemjeff radical individualist   1 year ago

    Well, I for one am in favor of getting rid of the fake judges and the kangaroo courts and the like. If a person is alleged to have violated the law, then let that person have his/her day in a real court with a real judge and a real jury.

    1. VULGAR MADMAN   1 year ago

      Thanks for being as ambivalent as usual.

      1. David K   1 year ago (edited)

        What ambivalency? Seems clear to me. Stop yelling at me spellcheck, it's okay to invent a new word.

  20. Chumby   1 year ago

    BREAKING: Pakistan Launches Strikes On Iranian Territory - multiple reports.

    Missiles are said to have targeted Sistan-Balochistan, where training camps of the Balochistan Liberation Army are allegedly located.

    The reported strikes appear to be retaliation for Iran's attacks, and are the first on Iranian territory since the Iran-Iraq war."

    - Qvinta Aetas

    1. Nazi-Chipping Warlock   1 year ago

      2024 is getting spicy.

      1. DesigNate   1 year ago

        ¡Ay caramba!

    2. Diane Reynolds (Paul. they/them)   1 year ago

      Pakistan is a nuclear power. I say we let them sort it out themselves.

      1. Stuck in California   1 year ago

        They bought their kolah namadi, they knew what they were getting into, I say, let them crash.

      2. Vernon Depner   1 year ago

        It would be emotionally satisfying to see Tehran vanish in a nuclear crossfire from Pakistan and Israel.

  21. animesrecommendation   1 year ago

    Animes Recommendation

    Animesrecommendation is a platform preferred by all otakus. Through our 15+ years of anime watching experience, we provide the best anime, manga and character recommendations to improve your watching & reading experience.

  22. David K   1 year ago (edited)

    Well, since so many folks are on Social Security, or trying?!!?!! Of course SS has most administrative law "judges"!

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