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Comment by TSiege | Hacker News Reader

This is a bigger deal then the title suggests since it appears it would be retroactive and nullify existing non competes

> The commission’s proposal appears to address this issue by requiring employers to withdraw existing noncompetes and to inform workers that they no longer apply. The proposal would also make it illegal for an employer to enter into a noncompete with a worker or to try to do so, or to suggest that a worker is bound by a noncompete when he or she is not.

This is very unclear to me, and seemingly experts, if the FTC has this power, but it would be very far reaching if it were to go into effect. Given the hostility of the current Supreme Court to federal agencies, the pessimist in me says that this would be challenged by an employer go all the way to the supreme court and be used by them to dramatically limit the power of FTC

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The old common law barred non-compete agreements as contracts in restraint of trade. It was superseded by statutory anti-trust regulation and the creation of government agencies like the FTC. If you think the latter doesn't have power to regulate these matters, we fall back to the old common law and non-competes are still unenforceable.

This is a convincing argument to me, but there's no telling whether it is enough to convince five+ of The Nine.

> Given the hostility of the current Supreme Court to federal agencies, the pessimist in me says that this would be challenged by an employer go all the way to the supreme court and be used by them to dramatically limit the power of FTC

More likely, in the short term it will be challenged in individual arbitration and we'll never hear about it.

I'm not sure that would not be possible given what the article describes. This regulation would retroactively nullify them and bar companies from trying to enact anything like a non compete period

That isn’t how it works with non competes. The old employer threatens to sue the new employer unless they fire you.

You can enforce non competes in arbitration. And arbitration awards cannot be put aside just because the arbitrators got the law wrong.

It isn't too unusual for humans to be protected from entering into unjust contracts.

> It isn't too unusual for humans to be protected from entering into unjust contracts.

Perhaps, but it is unusual for humans to be aware that they're protected from such.

Are they? I imagine if there were real repercussions for contracts with unenforceable clauses we would see far fewer of them.

> Given the hostility of the current Supreme Court to federal agencies

Maybe it's overreach by federal agencies when they create their own law.

There is a distinction between authorizing an agency to figure out how to get something done and letting one make new law.

Dramatically limiting the power of agencies to make up their own new laws seems like a good thing.

It's good to let agencies make laws if they make good laws. It's bad to let agencies make laws if they make bad laws. The liberal obsession with process is what lets the far right make inroads everywhere, since they don't share it.

What is good law and what is bad law? This is subjective, and likely shifts with the context of the surrounding society. Law is not morality, even though it may derive from social mores. For this reason, process is crucially important to prevent tyranny.

Yes, it's subjective. The ones I like are good. The ones that help my allies are good. The ones that punish my enemies are good. Pretending that things are any other way is madness.

When the enforcers and courts are corrupted racketeers, even good laws are evil.

Unless they're corrupt in my favor!

Lets be honest, the common American does not have the bargaining power to corrupt anyone powerful in their favor unless they move to the third world where their dollars go further and corruption is even more accessible.

This is the point of left IMO: to collectively develop the power to corrupt things in favor of workers. This was the point of Tammany Hall. Some Irish immigrant off the boat in 1890 was not a Democrat because he believed in liberalism, but because his ward healer got his brother a job in the sanitation department. When organized labor is strong, they can get Democrats to pass pro-labor policies. The point of all political economy is to corrupt the system of money and power in your personal favor (including your friends, people with similar class interests, your family, etc.). Sometimes that means "anti-corruption" but it's simply a bad idea (pointless, stupid, naive) to point out that some official is corrupt if they are doing what you want them to instead of what someone else does.

I agree to an extent, but I also think this is kind of kicking the can down the road: how do workers collectively decide what is in their interest and what isn't? The historically successful socialist answers to this question have generally ranged from "something that looks a lot like liberal democracy" to "something that looks a lot like oligarchic despotism".

Sure, that's the tough part of left politics. Capital has it easy, they can just pay people to do what they want. We have to get along and (more or less) agree.

So this sounds like a monarchy with extra steps.

My conservative dad said the exact same thing—almost word for word, just reversed—about liberals and process in 2009. I'm inclined to believe that there are groups of every political persuasion who believe the end justifies the means.

EDIT: To clarify, I mean that my dad said that liberals will do anything to accomplish their goals while conservatives play nice. The same idea but in reverse. This is why I think that what is actually happening is that there's a small group of people in any movement that believe the end justifies the means, but it's hard to see the ones in your own movement because you agree with them.

That's the left's problem IMO. The right knows that their game is to gain power and use it to achieve goals. The liberal left (which is most of it if we're honest) thinks they are just trying to gain enough power to make everyone play by the rules. The problem is that there is not enough power in the world to make your enemies bargain in good faith.

Anyway this derailed from the OP which is about some new rules that might slightly tip the power in the employer-employee relationship in favor of employees. As an employee (leftists like to say "worker" but it means the same thing), this would be good for me.

No, I'm saying that my dad gave me this exact lecture in 2009 but in reverse—he said that the problem with the right is that they play nice while the liberals will do anything it takes to take power and accomplish their goals. Literally the exact same thing that you're saying but in reverse.

I think what it actually is is that there are factions within each group who match your description and it is hard to see the faction in your own group because you agree with them.

I know it will sound like a slight to your dad, but in 2009 many conservative news outlets were pushing this narrative extremely heavily. And, I don't recall any actual evidence to back it up. It was more a weaponized accusation, much as marital infidelity was in the mid/late 90s. Worse, by all evidence since then, the record seems to be far more in the opposite direction. :(

No offense taken: I strongly disagree with my dad on politics, and a big part of the reason why is because of just how bad the conservative media was in those years.

Also, even he was appalled by the turn the Republican party took with Trump. I doubt he would argue the same today. He's a diehard believer in constitutional law, and he projected his ideals onto people who didn't actually hold them.

That said, I do believe the same tendency occurs on the liberal side. It's easy to notice when your opponent cheats, it's much harder to see it when a teammate does.

I fully agree on your closing proposition. I think my only concern is I'm worried that is, itself, turning into a weapon.

Agencies do not make laws, full stop. Agencies are empowered by congress via laws to regulate industries. These regulations can be challenged in court as to whether they have overreached the scope of their regulation written in the original law, but they are not making laws.

Agencies should not make laws (in the United States). Even good ones.

They do in all but name. One day a polymer80 frame in a box with a jig is a gun. Another day it is not. The only difference is a letter from an ATF agent.

Lawmakers make laws intentionally vague to hide their nefarious motives, and then let the courts "determine" the agencies can "clarify." Then the lawmakers point their fingers at the evil agencies while secretly laughing it was all in their plan to offload blame for what they planned all along.

That’s not “making” a law. The law already says certain types of firearm are legal and certain are illegal. Now if this law were to be maintained by congress, they’d need, I don’t know, a group of experts who understand firearm and congress will constantly revise and add or remove items from a list. May be they’ll give this group a name at some point and then they’d realise that it’s really hard to manage all this while also having to make new laws. So they’ll hire someone to execute this for them and assign this group of people to that executive.

Look up Administrative Law. It is lawmaking; even if you have such linguistic elides as aliasing the primary verb to 'rulemaking' instead.

Title 27, Code of Federal Regulations, section 478.11 defines a “firearm receiver” as, “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”

ATF has "regulated" that an AR-15 lower "receiver" is legally a "firearm receiver." Now show me where the "bolt or breechblock" is housed in the lower receiver. I promise you will not find it. They are basically making law.

Two things: first, are you referring to a regulation and saying that another regulation is inconsistent? It seems that neither is making "law" in the sense of an act of Congress. It would be different if the law had its own definition.

Second, your citation appears to be out of date and the current regulation defines "frame or receiver" differently.

ATF acts are not congress acts. Brilliant statement. No one is saying ATF is congress, so by definition their act is not an act of congress.

>Second, your citation appears to be out of date and the current regulation defines "frame or receiver" differently.

At the time of US v Rowald there were pretty clear inconsistancies. If you're referring to recent changes there's barely been enough time to create a historical record as the judicial process is slow, so it seems kind of silly to constrain to only post-latest change examples.

This would not be a law, and an agency cannot issue laws as it goes directly against the constitution. This would be a regulation, which is specifically the purpose of Federal Agencies. It is onerous, slow, and ineffective to have congress pass small laws for every little thing that needs to be regulated. Instead Congress creates agencies with a charter defining the scope of what they have purview over, and the agency then creates regulations on what it deems fit. These can be challenged in federal court, which is specifically what I've been mentioning

Why shouldn't Congress be able to delegate powers? Congress writes the laws and it seems appropriate that they should be able to write a law that allows a group they delegate to write and enforce regulations on their behalf. Especially when the scope of such laws is so narrowly and explicitly defined.

Do you really expect Congresspeople to have the educational background necessary to regulate agricultural products, automobile emissions, and how medical testing is conducted? Do you really want AoC or MTG deciding which medicine you can take? Remember the ACA/Obamacare debacle? Without agencies, the entire government becomes a series of "let's pass the bill to see what's in it" laws.

The whole point of delegation is that experts make the important decisions, and Congress approves a leader for the department that is accountable to them for oversight. Requiring Congress to bring every decision an agency makes to the floor for a discussion and vote is akin to having the Board of Directors of a company approve and modify every PR it Github.

Unelected entities should not be writing "regulations" (that have the power of law). Particularly when they both write the "regulation" and enforce it with police powers, such as the ATF, creating a dangerous fusion of the separated powers.

Yes, I do expect Congress to either build up that expertise, or hire their own staff yo do the footwork for them. The Library of Congress, in point of fact, was established to fulfill that very need. Congressional research. Also, until Gingrich in the 104th-ish Congress convinced them to shut it down in the 90's, the Legislative branch had their own independent Office of Technology Assessment research arm which to my understanding was a thorn in lobbyists side, because not only did they have a mandate to run down discrepancies (i.e. lobbyist said X, but our research/subpoenaing found Y is the case).

It was nuked because "we should just listen to lobbyists more", and basically the replacement enacted was to take double OTA's yearly budget, and drop that onto the Library of Congress, I suppose with the implication the GOP believes that Congresspeople should do their own research.

The level of follow thru on that is probably just what you'd expect.

If OTA came back, I'd be one of the first to throw my hat in the ring as a researcher/go-for, just because I believe it is such an essential piece of a healthy legislative institution, and we have suffered greatly over the past decades for want of it.

The end result of Congress not being able to delegate to experts will be under regulation and lobbyists running rampant.

.... as opposed to under regulation, lobbyists running rampant, AND tyrannical delegated "experts" as we have now.

Delegation is essential. There simply isn't enough time to regulate all the various industries that need regulation. Unless you want congress to read even less of what they pass than they do today. Congress can always override regulations that go too far or not far enough.

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