I know you are but what am I?

Agency Smith

Elon Musk's SpaceX is suing the National Labor Relations Board (NLRB) because, according to the company's claim, the agency itself is unconstitutional.

Filed before a federal district court in Texas, SpaceX claimed in a complaint that the NLRB — which earlier this week accused the company of firing workers for being critical of Musk — is "an unconstitutionally structured agency" whose in-house courts should have no jurisdiction over the spaceflight firm.

To be fair, there's little doubt that SpaceX did, in fact, fire people who were critical of Musk. That much is very public, considering that the ex-employees in question were terminated after signing and issuing an open letter calling on their employer to distance itself from its founder because his erratic behavior was, per their description, a "frequent source of distraction and embarrassment."

As the NLRB alleged in its complaint against the company, SpaceX president and CEO Gwynne Shotwell and other C-suiters at the firm acted illegally when interrogating employees about the letter and then telling them to keep those conversations secret, and overall creating an "impression of surveillance (including reading and showing screenshots of communications between employees)," the agency wrote in its filing.

Uno Reverse

Now, in an effort to kibosh this latest NLRB clapback against the many alleged labor infractions committed by companies in Musk's portfolio, SpaceX is using an unusual but not altogether unheard of argument in its countersuit: that the agency's in-house courts are "miles away from the traditional understanding of the separation of powers." Citing constitutional framer James Madison, the SpaceX suit even goes so far as to call the NLRB "the very definition of tyranny."

The countersuit goes on to insinuate that the agency is unduly biased against him — a claim Musk himself has made repeatedly regarding the Securities and Exchange Commission's insistence on taking his stupid pot joke tweet in 2018 seriously.

"If the current Members of the NLRB are asked to make a prosecutorial determination about whether SpaceX is in violation of the [National Labor Relations Act], there is an objectively high risk that they would not later be able to provide the neutral adjudicative forum that the Constitution demands," the company's attorneys wrote, "and so would need to recuse from further participation in any agency adjudication against SpaceX."

While it's fairly unlikely — though not impossible — that any judge will agree with SpaceX's assertion, that's far from the point of this kind of filing. Musk is trying to gum up the works in this latest labor drama. And unfortunately, because he has enough money for an army of galaxy-brained lawyers, he's likely to succeed for the time being.

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