On November 8, 2023, the District Court for the Southern District of Texas handed the company SpaceX a large win in its litigation against the Department of Justice’s Immigrant and Employee Rights Section. Challenging the constitutionality of the Department of Justice’s administrative enforcement proceedings that have been brought against it, SpaceX’s litigation here has the potential to drastically change the system in which we currently operate.
As a brief background, the DOJ filed a complaint against SpaceX with the “Office of the Chief Administrative Hearing Officer,” or OCAHO, in August of 2023 alleging certain of SpaceX’s hiring practices violated laws related to discrimination based on national origin or citizenship status. Those documents are unfortunately not public, and so we are not able to see what the underlying case looks like at this time.
However, what we do know is that SpaceX has elected to sue, saying that the way that OCAHO is set up violates several provisions of the Constitution—most notably here, a provision known as the “Appointments Clause.” A full dive into the Appointments Clause is beyond the scope of this blog post, but the main takeaway is that SpaceX has alleged—and the court has preliminarily agreed—that the Administrative Law Judge in charge of SpaceX’s proceedings is too far removed from oversight by the Attorney General.
In making this determination, the court has ordered that all administrative proceedings be halted, and this may be a sign of a more major change to the way citizenship and national origin discrimination cases are brought in the future. After all, if the court decides that the current method is unconstitutional, the Department of Justice will certainly be scrambling to put a new enforcement mechanism and system in place as soon as it possibly can.
There is a general cap for H-2B visas at 66,000 visas per fiscal year, divided into 33,000 visas for H-2B employees starting on April 1st and an additional 33,000 H-2B…
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