Elon Musk Versus The Regulatory State
January 5, 2024 12:16 PM Subscribe
The National Labor Relations Board (NLRB) filed a complaint that SpaceX had illegally fired employees who had written an open letter criticizing the conduct of SpaceX's owner, arguing the dismissals were an illegal attempt to suppress organization of workers. In response, Musk and SpaceX have filed a countersuit asserting that the NLRB is unconstitutional in a case that could undercut the US regulatory state.
Musk's argument is twofold:
* Because administrative law judges have protections from at will dismissal by the President, this protection violates Article II of the Constitution as the President does not have sufficient control of them.
* The NLRB hearing violates his Seventh Amendment right to a civil jury trial.
Musk's argument is twofold:
* Because administrative law judges have protections from at will dismissal by the President, this protection violates Article II of the Constitution as the President does not have sufficient control of them.
* The NLRB hearing violates his Seventh Amendment right to a civil jury trial.
This fuckin' guy.
posted by grubi at 12:30 PM on January 5 [66 favorites]
posted by grubi at 12:30 PM on January 5 [66 favorites]
And, his transformation into a James Bond villain is finally complete. Chud #1, indeed.
posted by Phlegmco(tm) at 12:44 PM on January 5 [13 favorites]
posted by Phlegmco(tm) at 12:44 PM on January 5 [13 favorites]
I love it that a case that would have been laughed out of court ten years ago is now an alarming existential threat to the entire country’s workforce and quality of life. This fucking timeline.
posted by qxntpqbbbqxl at 12:51 PM on January 5 [90 favorites]
posted by qxntpqbbbqxl at 12:51 PM on January 5 [90 favorites]
No, I'm pretty sure he gets his Seventh Amendment right to a civil jury trial when the NLRB's decision gets upheld and the fired employees get their day in court.
Because isn't some regulatory board filing a complaint the thing that starts legal proceedings, it's not the final decision of legal proceedings?
I don't know how often 'you have no authority over me' arguments get held up in court, but it's way to often if it encourages these dummies.
a case that would have been laughed out of court ten years ago
The problem here is the media reports on every huge stupid thing these people do before anything actually happens. But, I'd say ten years ago they would've still reported, but maybe 20 years ago this sort of saber rattling wouldn't get much news. Today the 24 hour internet news cycle has to report on the slightest jingle of a sabre in order to stay in people's algorithmic feeds.
posted by AzraelBrown at 1:08 PM on January 5 [15 favorites]
Because isn't some regulatory board filing a complaint the thing that starts legal proceedings, it's not the final decision of legal proceedings?
I don't know how often 'you have no authority over me' arguments get held up in court, but it's way to often if it encourages these dummies.
a case that would have been laughed out of court ten years ago
The problem here is the media reports on every huge stupid thing these people do before anything actually happens. But, I'd say ten years ago they would've still reported, but maybe 20 years ago this sort of saber rattling wouldn't get much news. Today the 24 hour internet news cycle has to report on the slightest jingle of a sabre in order to stay in people's algorithmic feeds.
posted by AzraelBrown at 1:08 PM on January 5 [15 favorites]
I love it that a case that would have been laughed out of court ten years ago is now an alarming existential threat to the entire country’s workforce and quality of life.
No. It's still getting laughed out of court.
posted by Back At It Again At Krispy Kreme at 1:18 PM on January 5 [13 favorites]
No. It's still getting laughed out of court.
posted by Back At It Again At Krispy Kreme at 1:18 PM on January 5 [13 favorites]
And, his transformation into a James Bond villain is finally complete.
Except he lives in a secret lair inside a volcano just so he can avoid being served papers related to his custody case with Grimes.
posted by pracowity at 1:43 PM on January 5 [15 favorites]
Except he lives in a secret lair inside a volcano just so he can avoid being served papers related to his custody case with Grimes.
posted by pracowity at 1:43 PM on January 5 [15 favorites]
It's still getting laughed out of court.
I'm not sure why people think their rights are safe in the current US judicial climate.
The US supreme court has been taken over by partisans, cherry picked and trained by the Federalist society, and they pay only lip service to the text of the constitution, precedent, legislative intent and content laws they are interpreting.
The question is "how does the federalist society and people bribing SCOTUS members want the SCOTUS to rule". And I'm pretty sure that the federalist society wouldn't mind dismantling union rights in the USA.
Coming up with a justification for any ruling you want is not hard when you aren't bound by precedence.
And lower court judges also know this. If you, as a lower court judge, are worried about being embarrassed (and many don't seem to be), then make up out of whole cloth some technical reason why the right should be discarded in this case, have it bubble up near or to the SCOTUS, and the judges will drop hints saying what technical details the next case should involve.
This isn't a game.
posted by NotAYakk at 1:45 PM on January 5 [51 favorites]
I'm not sure why people think their rights are safe in the current US judicial climate.
The US supreme court has been taken over by partisans, cherry picked and trained by the Federalist society, and they pay only lip service to the text of the constitution, precedent, legislative intent and content laws they are interpreting.
The question is "how does the federalist society and people bribing SCOTUS members want the SCOTUS to rule". And I'm pretty sure that the federalist society wouldn't mind dismantling union rights in the USA.
Coming up with a justification for any ruling you want is not hard when you aren't bound by precedence.
And lower court judges also know this. If you, as a lower court judge, are worried about being embarrassed (and many don't seem to be), then make up out of whole cloth some technical reason why the right should be discarded in this case, have it bubble up near or to the SCOTUS, and the judges will drop hints saying what technical details the next case should involve.
This isn't a game.
posted by NotAYakk at 1:45 PM on January 5 [51 favorites]
What a cloon.
posted by lextex at 2:06 PM on January 5 [1 favorite]
posted by lextex at 2:06 PM on January 5 [1 favorite]
It's very much not getting laughed out since there is a case just argued making this same argument with regard to the SEC: SEC v. Jarkesy.
posted by idb at 2:36 PM on January 5 [11 favorites]
posted by idb at 2:36 PM on January 5 [11 favorites]
This is an echo of a current Supreme Court Case against the SEC. So called conservative judges are preparing to radically rewrite the entire framework of regulations that have governed the country for the last 100 years.
posted by interogative mood at 2:38 PM on January 5 [30 favorites]
posted by interogative mood at 2:38 PM on January 5 [30 favorites]
I'm feeling incredibly authoritarian left about this.
posted by jellywerker at 4:16 PM on January 5 [13 favorites]
posted by jellywerker at 4:16 PM on January 5 [13 favorites]
Clarence Thomas will really be able to upgrade his vacations with this one.
posted by dances_with_sneetches at 4:23 PM on January 5 [14 favorites]
posted by dances_with_sneetches at 4:23 PM on January 5 [14 favorites]
Making this argument means there will be no movement on the case until the Jarkesy decision. It's honestly excellent lawyering.
I wish there was more stigma attached to lawyers who take on cases like this. I believe strongly in the right to a vigorous defense, but reserving the most vigorous defenses for the most powerful assholes is not how that's supposed to work!
posted by dbx at 5:48 PM on January 5 [9 favorites]
I wish there was more stigma attached to lawyers who take on cases like this. I believe strongly in the right to a vigorous defense, but reserving the most vigorous defenses for the most powerful assholes is not how that's supposed to work!
posted by dbx at 5:48 PM on January 5 [9 favorites]
Wouldn't it just be a shame, a real shame, if he were somehow in the next Tesla that gets yeeted into space?
posted by xedrik at 6:42 PM on January 5 [3 favorites]
posted by xedrik at 6:42 PM on January 5 [3 favorites]
because it did happen ...
"it sounds like some of those people you fired are in the audience"
posted by philip-random at 11:06 PM on January 5 [1 favorite]
"it sounds like some of those people you fired are in the audience"
posted by philip-random at 11:06 PM on January 5 [1 favorite]
Because administrative law judges have protections from at will dismissal by the President, this protection violates Article II of the Constitution as the President does not have sufficient control of them.
Wouldn't this also apply to the Supreme Court, much like the "trial by jury" argument? What am I missing?
posted by Dysk at 1:23 AM on January 6 [2 favorites]
Wouldn't this also apply to the Supreme Court, much like the "trial by jury" argument? What am I missing?
posted by Dysk at 1:23 AM on January 6 [2 favorites]
Mainly that what's sauce for the goose is expensive and delicious and why yes I think I will have another portion.
posted by flabdablet at 1:53 AM on January 6
posted by flabdablet at 1:53 AM on January 6
Wouldn't this also apply to the Supreme Court, much like the "trial by jury" argument? What am I missing?
There are three kinds of federal courts*: Article I, Article III, and Article IV. The Article III courts are what you mainly think of as federal courts: district courts, circuit courts of appeal, the Supreme Court. Those courts are created pursuant to Article III of the Constitution, which deals with the judiciary, and the judges have life tenure. They make up what we generally think of as the judicial branch of the US government. The judges on those courts are Article III judges.
Article I courts are created by statute (i.e. pursuant to Congress's legislative powers described in Article I of the constitution). Each Article I court's jurisdiction and powers are limited and often tied to a single federal agency. You can think of them as a specialized, efficient courts, whose decisions can then (usually) be appealed to an Article III court. Perhaps confusingly, the judges on these courts (usually called administrative law judges or ALJs in the administrative agency court context) are called Article II judges because they, like other administrative agency staff, are part of the executive branch defined by Article II.
A complicated and subtle body of law has evolved over the decades involving how ALJs are appointed and whether they are "principal officers" (like Cabinet-level officials and heads of agencies) or "inferior officers" (officers subject to supervision by a principal officer). The former can definitely be fired at will by the President. The latter, however, may be able to enjoy some protection from at-will removal if they have a narrowly-defined job. Or at least that's what the Supreme Court had held in the past. What this and Jarkesy, the pending case about the SEC, are fundamentally about is whether Congress actually has the power to insulate ALJs from removal by the President. The thinking is that ALJs should be directly beholden to the President in order to keep them closer to accountability by the electorate. According to this reasoning, the only judges who should have significant protection from removal are Article III judges because the Constitution says Article III judges have that protection but didn't say anything like that in Article I or Article II.
This is, of course, a great example of turning the Constitution into a suicide pact: forcing a strict textualist or originalist interpretation even if it would upend a century of precedent and destroy a complex (and for the most part successful) regulatory system without any effective substitute. It means returning to the spoils system, where each president tosses out all the old appointees and stuffs the government with cronies. It's an absolutely terrible idea, even setting aside the legal counterarguments.
(The US territorial courts are Article IV courts.)
posted by jedicus at 5:22 AM on January 6 [20 favorites]
There are three kinds of federal courts*: Article I, Article III, and Article IV. The Article III courts are what you mainly think of as federal courts: district courts, circuit courts of appeal, the Supreme Court. Those courts are created pursuant to Article III of the Constitution, which deals with the judiciary, and the judges have life tenure. They make up what we generally think of as the judicial branch of the US government. The judges on those courts are Article III judges.
Article I courts are created by statute (i.e. pursuant to Congress's legislative powers described in Article I of the constitution). Each Article I court's jurisdiction and powers are limited and often tied to a single federal agency. You can think of them as a specialized, efficient courts, whose decisions can then (usually) be appealed to an Article III court. Perhaps confusingly, the judges on these courts (usually called administrative law judges or ALJs in the administrative agency court context) are called Article II judges because they, like other administrative agency staff, are part of the executive branch defined by Article II.
A complicated and subtle body of law has evolved over the decades involving how ALJs are appointed and whether they are "principal officers" (like Cabinet-level officials and heads of agencies) or "inferior officers" (officers subject to supervision by a principal officer). The former can definitely be fired at will by the President. The latter, however, may be able to enjoy some protection from at-will removal if they have a narrowly-defined job. Or at least that's what the Supreme Court had held in the past. What this and Jarkesy, the pending case about the SEC, are fundamentally about is whether Congress actually has the power to insulate ALJs from removal by the President. The thinking is that ALJs should be directly beholden to the President in order to keep them closer to accountability by the electorate. According to this reasoning, the only judges who should have significant protection from removal are Article III judges because the Constitution says Article III judges have that protection but didn't say anything like that in Article I or Article II.
This is, of course, a great example of turning the Constitution into a suicide pact: forcing a strict textualist or originalist interpretation even if it would upend a century of precedent and destroy a complex (and for the most part successful) regulatory system without any effective substitute. It means returning to the spoils system, where each president tosses out all the old appointees and stuffs the government with cronies. It's an absolutely terrible idea, even setting aside the legal counterarguments.
(The US territorial courts are Article IV courts.)
posted by jedicus at 5:22 AM on January 6 [20 favorites]
The UK has no formal Constitution, relying instead on centuries of convention.
The US has a founding Constitution and centuries of convention.
Given the existence of an arguably workable* State that not only relies on nothing but convention but is also the US's closest military ally, I find it deeply weird that the US's founding Constitution is generally regarded as some kind of sacred text while the vital contribution of convention to the successful operation of any government is almost universally overlooked there.
It ought to be much harder than it is for SCOTUS to get away with saying "actually this is how we're going to interpret words written hundreds of years ago from now on, regardless of how completely that interpretation flies in the face of the unwritten portion of the Constitution that we actually use."
*in principle, despite the best efforts of the clown car temporarily in charge right now
posted by flabdablet at 8:53 AM on January 6 [2 favorites]
The US has a founding Constitution and centuries of convention.
Given the existence of an arguably workable* State that not only relies on nothing but convention but is also the US's closest military ally, I find it deeply weird that the US's founding Constitution is generally regarded as some kind of sacred text while the vital contribution of convention to the successful operation of any government is almost universally overlooked there.
It ought to be much harder than it is for SCOTUS to get away with saying "actually this is how we're going to interpret words written hundreds of years ago from now on, regardless of how completely that interpretation flies in the face of the unwritten portion of the Constitution that we actually use."
*in principle, despite the best efforts of the clown car temporarily in charge right now
posted by flabdablet at 8:53 AM on January 6 [2 favorites]
It is hard for the Supreme Court to get away with just saying whatever. It took a decades-long campaign to get here.
posted by ryanrs at 9:53 AM on January 6 [9 favorites]
posted by ryanrs at 9:53 AM on January 6 [9 favorites]
By dismantling the civil mechanisms to resolve labor disputes they aren't eliminating the disputes. Only the chance they will be settled in the courts.
posted by The Manwich Horror at 10:03 AM on January 6 [11 favorites]
posted by The Manwich Horror at 10:03 AM on January 6 [11 favorites]
Replacing all the ALJs would be an excellent start for Trump's second term. Definitely something for Day 1.
posted by ryanrs at 10:19 AM on January 6
posted by ryanrs at 10:19 AM on January 6
Hopefully, most union organizers understand the courts will always be a trap. However, it is incredibly useful to force bosses to take off the mask.
Assuming this goes to the Supremes, it will be great to know where capital stands on the issue of workers rights and state power.
If we can’t rely on any formal protections/legal infrastructure , then existing labor law becomes meaningless, including the prohibitions. Many powerful tools , (ex. secondary boycotts, many forms of direct action, etc.), have been off the table for a couple of generations as part of a grand compromise . If that truce is off, I’m happy to help dust off the box and take it to them directly.
posted by Unioncat at 5:52 PM on January 6 [8 favorites]
Assuming this goes to the Supremes, it will be great to know where capital stands on the issue of workers rights and state power.
If we can’t rely on any formal protections/legal infrastructure , then existing labor law becomes meaningless, including the prohibitions. Many powerful tools , (ex. secondary boycotts, many forms of direct action, etc.), have been off the table for a couple of generations as part of a grand compromise . If that truce is off, I’m happy to help dust off the box and take it to them directly.
posted by Unioncat at 5:52 PM on January 6 [8 favorites]
Ugh, now Trader Joe’s is joining Musk in claiming the NLRB is unconstitutional, in a hearing about its own union-busting crimes.
posted by mbrubeck at 11:07 AM on January 27
posted by mbrubeck at 11:07 AM on January 27
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posted by RonButNotStupid at 12:24 PM on January 5 [6 favorites]