I've been surprised I haven't seen this mentioned on social media or in the news. Are my friends wrong, or are people celebrating because this is just a step in the right direction even if it may not do anything yet?
The federal government can absolutely regulate both employment and contract law. (Merger agreements are contracts. The FTC was established to block bad mergers.)
Whether the FTC can do this is untested. But that’s more a Chevron issue than a federal powers one.
https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
Unelected technocrats legislating by decree is the purview of the Supreme Court not the FTC, so sayeth the majority of current Supreme Court justices. I imagine a bunch of stuff is about to break since elected officials cannot pass jack shit in this hyper-partisan era.
Where in Article I Section 8 does the Constitution grant that power?
The Commerce Clause, when interpreted expansively — as federal courts have largely done. (We'll see what happens with the 6-3 conservative majority of this SCOTUS incarnation.)
Now, that doesn't mean the Supreme Court won't come up with their own hot take, but at some point appeals and district courts are just going to say no when they send a case back.
What is the Supreme Court going to do? Federal judges can only be removed by impeachment of the House and conviction of the Senate. The Supreme Court has no power to enforce its decisions.
There was nothing to enforce as the court didn't impose any obligations on Jackson.
The obligations imposed by the ruling within Worcester v. Georgia was that states (specifically Georgia) could not enact and enforce regulations on Reservations and Native American land because of pre-existing treaties. It was never claimed that the quote is about what decisions were made with regards to Jackson; it was about what decisions were made for Georgia, and that Jackson had no intent to enforce them.
Jackson was very much complacent to Georgia's continued intent to regulate, and later remove, Native Americans from their designated land.
NY Governor Hochul vetoed it because she is a hack politician and yielded to Wall Street pressure. Politicians with a spine (or constitution, if you prefer) are in short supply.
https://apnews.com/article/noncompete-agreement-bill-veto-ne...
> But in recent months, the legislation had come under fierce attack by Wall Street and top business groups in New York. They argued the agreements are necessary to protect investment strategies and keep highly-paid workers from leaving their companies with prized inside information and working for an industry rival.
Let me refer you to George Carlin's approach: https://youtu.be/xIraCchPDhk
At which level(s), or do you mean voters? Voter sentiment has essentially no bearing on public policy, and it was even proven with data in a Princeton study confirming what we already knew. [0]
If I might quote Gore Vidal: There is only one party in the United States, the Property Party … and it has two right wings: Republican and Democrat. Republicans are a bit stupider, more rigid, more doctrinaire in their laissez-faire capitalism than the Democrats, who are cuter, prettier, a bit more corrupt — until recently … and more willing than the Republicans to make small adjustments when the poor, the black, the anti-imperialists get out of hand. But, essentially, there is no difference between the two parties.
Partisanship tribalism is a divide-and-conquer gambit that has been largely successful in keeping Americans fighting each other counterproductively and voting against their own interests.
0. https://www.cambridge.org/core/journals/perspectives-on-poli...
They will kill this faster than they killed the COVID vaccine mandate. Govt. agencies can’t make laws, even if we may agree with them (I actually do in this case). However this isn’t the role of an unelected government agency.
This is an unfortunately common response that often misses the point: U.S. government agencies do indeed have the power to make decisions with the force of law. Rule-making is a valid authority (subject to legal review of course)
Perhaps the courts will have to step in clarify? But this won't solve the administrative issue. If agencies don't have "agency" to do their jobs well, that would be ironic.[1] Perhaps Congress will be motivated to write better laws?[2]
[1] I'm deeply suspicious of efforts to undermine agencies under the cover of "only Congress makes law"... I suspect is it often a guise of undermining the laws one party does not like. Or, sometimes, even as an effort to undermine the idea of regulation at all. The latter point is hardly hidden -- it is central to a lot of right-leaning rhetoric which seems to boil down to "regulation bad, freedom good". This level of reasoning would have Milton Friedman rolling in his grave, as some regulation _provably_ helps reduce market failures. (And even center-left people typically want markets to work well.) But I digress.
[2] Hah. The idea that we would give Congresspeople and their staff even more responsibility to specify laws _without_ an associated increase in their competence for those areas where the law applies strikes me as foolhardy.
> Whether the net benefit is good or bad is largely a subjective matter of political opinion.
Without knowing the intention of the author above, when I see the phrase "subjective matter of political opinion", it makes me wonder if it serves as a "semantic stop sign" or "thought-terminating cliché"[2].
WRT net benefits... it is one thing to have differing predictions about what will happen and quite another to assess each possible scenario.
I recognize differences of opinion and want a society that protects the freedoms to have them. However, to me, opinions matter much less than reasonable claims based on evidence. Luckily, when reading [1], there are many testable claims embedded in the arguments of the various justices.
For example, in the cases of an ambiguous law, who is better suited to understand the ambiguity... agency experts or judges? Which groups have better knowledge of the domain? Which have experience in engaging in sustained discussions with the industries they are regulating? Agencies have an objective advantage for both.
Here is my point: say we go through the, say, top twenty arguments and we dig into the details. I predict that most opinions one hears at the outset from the public don't survive contact with reality. Those opinions have to get tossed. What remains? Nuanced assessments of better and worse scenarios. By making these assessments more nuanced, the hope is we find workable and sensible compromises.
[1] https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...
[2] https://en.wikipedia.org/wiki/Thought-terminating_cliché
One side will say with some justification that these rules make sense and are definitely a net benefit, and we should expect this to be the case because the agency is run by technocrat experts who evaluate these policy decisions for a living and do a far better job than we can expect of even the best congressional staffers.
The other side will point out that it's a very fine line between the current, mostly harmless rule-setting actions of benevolent agency experts, and an unelected deep state that can become a tool of fascist ideologues. Our freedom is dependent on safeguarding our democracy, and that means no rules that don't trace their core to laws passed by elected representatives. These people would point to the disastrous actions of the DEA and FDA, for example, which is currently waging war on ADHD patients via the artificial Adderall shortage, or Operation Choke Point (google it).
Where you fall on this debate is a subjective matter of political opinion. There are pros and cons to both sides.
Yes, I agree.
> and that means no rules that don't trace their core to laws passed by elected representatives.
I think this is too strong of a claim. Why?
We live under many rules that don’t trace back to laws elected by elected representatives. Many of our laws descend from common law which predates representative democracy.
Not to mention that there are tremendous sources of power outside one’s governmental sphere that constrain our options, such as culture, corporations, and other governments. Whether one calls these “rules” or “constraints” is sort of beside the point when you focus on a society’s ability to respond to undesirable forces. This leads to how I would restate your claim…
Perhaps a more accurate statement would be this: freedom depends on mechanisms such that the people can drive policy.
> FDA, for example, which is currently waging war on ADHD patients via the artificial Adderall shortage
Why do you choose this loaded language? This does not build credibility in my eyes. War means something, and it not that.
I don't mean to split hairs nor imply that I alone get to decide what words mean. But I do have good reasons to suggest that words matter and that we should pay attention to them.
I am saying that rational people seeking truth strive not to use phrases "waging war" in a spirit of rationally discussing an issue. The way it is used above doesn't shine light on the core issue. The phrase invites tribalism and gut reactions rather than reason.
At the very least, such a phrase (1) presumes intention; and (2) assigns blame. These are two additional claims beyond the claim of harm to people with ADHD. I think one can make a decent argument about how agencies with too much authority can cause harm without invoking the war metaphor. Invoking that metaphor makes it harder to discuss the issues that seems to be driving this (interesting) discussion. I would frame that issue broadly as: (A) To what degree do agencies have legal and rational authority to clarify ambiguous laws? (B) Given what we know about human nature and organizations, what are some possible downstream outcomes?
Again, I'm making the case that a sentence like "But people have different opinions", when offered in the sense of e.g. "and that's all we can really say about that" is a disservice to understanding. As I see it, we have much necessary work to do that has nothing to do with pointing to differences of opinion. I think we need more substantive truth-seeking. If we engage in that fully, yes, differences of opinion will remain, but they will likely be applied to more nuanced aspects of the issue. This would be a good thing. It would help us talk in clearer ways.
I hope you can see that I am not dismissing rational claims of harm. I am instead expressing concern about the rhetoric used.
If you find yourself disagreeing with me, it might help to know that (i) I generally push back against moral relativism. Also (ii) I don't assign moral worth to mere opinions. I assign moral worth to people and their well-being, not merely to any and all electrochemical fluctuations that we call thoughts and beliefs. To summarize, I respect the ability of people to have opinions, but I don't give those opinions some kind of fundamental moral weight.
Why? Many such opinions are unconnected with reality. Sometimes, they don't even make sense _for them_; i.e. for their own self-interest! Moreover, enlightened people who pay attention to their own thoughts can notice this -- it is not something I have to impose on them.
[1] https://reason.com/2024/02/26/dea-shuts-down-drug-factory-ev...
Stepping back (hopefully to clear the air), I hope you can see this: it is hard for others to tell when you are using a phrase sarcastically to criticize some other party's usage of the same phrase.
Aside: unfortunately, the use of "war" as in "war on drugs" often corresponds with armed conflict... though to my knowledge, this is not a recognized problem with amphetamine mixed salts.
War on Poverty.
War on Cancer.
America just loves war metaphors. I think you're reading too much into it.
https://www.hoover.org/research/rise-war-metaphor-public-pol...
I’m detecting an argument that “other people muddle words, so I can too”. Yikes. Can ain’t the same thing as should.
Maybe I should be more specific: The words you wrote can be easily read as a crackpot suggestion that the FDA is seeking to actively harm people with ADHD. (I write this now after having reread the source comment.)
Cancer doesn’t know we are at war with it; neither does poverty. There is no one we can kill to solve these problems. Instead, hopefully, we are seeking understanding of science and human nature so that we can reduce these problems.
Anyhow, I can’t tell if any of my main logical arguments have gotten through, which is a symptom of a bad conversation in my eyes at least. I don’t view this as a debate —- rather as a process of understanding.
"Understanding the ambiguity" is fine if we are talking about trying to figure out what was intended by the people who put the ambiguous phrases in. But the issue isn't about who can "understand" the ambiguity, it's about who's going to be making things up and giving the ambiguity as an excuse. Asking whether bureaucrats or judges are better at "understanding the ambiguity" is the wrong question--understanding something and doing it are very different things. They'd just understand that the law is supposed to be X, and give a spurious justification about it being Y instead anyway.
Your use of phrases like "thought-terminating cliche" makes you sound like a rationalist. In which case I hope you know what a quokka is. (For the uninitiated, a quokka is an animal that can't understand that someone might want to hurt it.) If someone has an agenda that is against your interests, having "better knowledge" and being "better suited to understand" and "having experience" just makes it easier for them to harm you.
My comment two levels up was not a comprehensive assessment of the pros and cons of this policy issue. My goal was to highlight that while I recognize subjective opinions, I care about them relatively less until we fully pursue rational means of understanding.
There are (of course) valid powers available to agencies. The question is what powers are valid.
Beware the dark arts of rhetoric. I’m familiar with spotting this one because my constitutional law professor used it often. He helped us to see right through it.
Logic and argumentation should win, not words designed to scare or muddle.
Intellectually honest comments reveal their fundamental guiding moral and political philosophies, rather than painting a one sided picture.
Edits done as of 6:30 pm eastern time.
Just like Judges.
The idea that courts are the only delegates of the elected representatives of the people who are allowed to figure out the nuances of how to carry out the democratically legislated responsibilities of government is a bit of a brainworm that has infected US politics and makes the Supreme Court a little too important.
Executive agencies aren't a "fourth branch of government with little oversight", they're article II section 2 'departments' of the executive, established by law, and controlled by the president and appointed officers, with as much oversight as congress legislates to require, plus accountability to the courts for remaining within the bounds of their legal and constitutional authority.
Personally, I feel Congress giving its authority to the executive branch breaks constitutional separation of powers period. Could Congress grant the President autocratic authority? SCOTUS says it has to give sufficient standards to delegate authority and inconsistently says yes or no to different attempts, but really what congressional standard did the FTC use to arrive at this (admittedly good) rule?
My view is that as long as there’s genuine consent, two parties agree to something, no one is coerced, both are of sound mind, two human beings should be able to enter into any contract you can imagine. It doesn’t matter if that’s Gay Marriage or a firearms transaction.
The role of government should only be to ensure that that both parties engaged fairly. The minute you want to start using the government to ban one thing or another based on some moral imperative, is the minute you stopped respecting the autonomy of other people and decided to force your morality on another through collective force.
How do you square that up though with the power differential in employer / employee relations? The employee has to work or be destitute. That gives employers a tremendous amount of power in any contract negotiation.
Coercion doesn't have to be a gun to your head. Every person in the workforce is under a pretty coercive force which is that without gainful employment you are going to go without housing, medicine, transportation, etc. Without any collusion on the part of the employers, the market works to select those employers who can create the contract conditions most favorable to profit production. We shouldn't be surprised that "favorable to profit production" and "disadvantaging the worker" are often closely aligned, every company would like to pay as little as possible for their input and get as much profit as possible out of their outputs. Labor, or Human Resource, as corporations like to call it, is an input and so there's a tremendous systemic pressure to craft contracts in the way that will get the maximum profit out of every employee.
Sure the employee didn't have to sign that unfair employment contract, they could have elected to sign one of hundreds of unfair employment contracts. The fact that they have a large variety of unfair contracts to select from doesn't on its own increase the fairness of the contract. The "collective force" of "you need money to operate in society" means that all workers are coerced to sign "the best deal they can get" which doesn't mean it's going to be a good deal or a fair deal for the worker, just the best that the market has.
Many individuals care about society as a useful construct -- a construct that is not easily calculable from individual utilities. [1] This would suggest that even utilitarians should care about society -- unless they think they get to define what matters to their precious individuals. [2]
[1] Sure, one can say society is _causally_ derived from individual actions, but... (1) the derivation of what society looks like is not predictable enough for the time scales we care about; (2) individuals are influenced by society, as a matter of perception
[2] If I may attempt some satire, I wouldn't at all be surprised if some utilitarians are a sort of "mini-autocrat" at heart -- in the sense they get to decide what counts in every individual's utility function. e.g. "I value you, individuals!, yes I do!... but I get to tell you what really matters for your happiness! and after I do that I decree that the summation operator is how we put it all together!"
The burden of proof is on the Government to prove that Congress explicitly intended the agency to regulate this part of contract law. Like I said before, I personally support banning non-competes. But it has to be done legally. It has to be done within the constraints of a system of laws.
What I'm referring to here is Wickard v Filburn in which the Supreme Court ruled that a farmer growing food on his own land to feed to his own animals was participating in "interstate commerce" and could thus be regulated by the federal government.
This is a big part of why the federal government can control things like which plants you are allowed to grow in your home.
But when the FTC tries to regulate something like non-competes and protect average workers the corporate attorneys come out of the woodwork, "oh no, the federal government can't do that!"
1. Whether Congress can ban noncompetes nationwide through its ability to regulate interstate commerce.
2. Whether Congress can say "so-and-so can make any laws he wants about x".
3. Whether this is in scope of the FTC's mission of preventing unfair trade practices.
To me, #1 is a clear no for intrastate agreements, but under Wickard it is constitutional.
#2 is yes under Chevron.
#3 seems an obvious yes.
The only question would be if SCOTUS decides now is the time to correct what it sees as prior incorrect decisions.
The court could still decide that this rule is a "major powers question" and so belongs to Congress. This would allow the court to not have to reach any question of whether the FTC has broad powers, whether the act that created the FTC is constitutional, or whether Wickard was correctly decided. Therefore it seems more likely that the court would do that -again, if it wanted to reverse the FTC here- than anything else.
Can you imagine if the court ruled the FTC to be unconstitutionally created? They wouldn't risk that chaos.
This would be an example of an "unfair" practice, which mostly are about predation in the context of unequal bargaining position when litigated under "Little FTC Acts"[2]. I don't know offhand whether these similar laws have been used to achieve the same thing state-by-state, but the FTC rule meets the straight face test for sure. So, regardless of what happens next at the Federal level, this is about to become a white-hot area of litigation under state "Little FTC Acts".
[1] https://www.law.cornell.edu/uscode/text/15/57a
[2] https://litigationcommentary.org/2021/06/15/a-fresh-look-at-...
So, yeah, seems like at least those non-competes impacts interstate commerce.
The reason those geographical clauses are in those contracts is because many states have ruled that non-competes are illegal unless they are limited in some ways to be "reasonable", and one common way states courts measure this is by ensuring that they are limited to something that might be a reasonable 'business area' that the company competes in. Corporate lawyers typically write in the exact radius that state courts have historically enforced into their non-competes to avoid them being disqualified for being too broad.
"Interstate commerce" on the other hand, just means any sort of business activity that crosses state lines. Basically every business engages in interstate commerce, just because commerce requires many interstate activities, like using the internet, or accepting electronic payments, or ordering supplies made in a different state.
I’m just saying that non-competes like this should be regulated under Federal authority because they explicitly cover geographic areas that include multiple states. That’s in addition to the impacts on “interstate commerce” proper (which as you said is basically all commerce).
Said another way: I find the argument that non-competes should be allowed or disallowed under the authority of only state laws to be lacking. If a contract in state A dictates what you can do in state B, it’s an interstate issue and Federal law could (should?) be involved.
And regardless, federal power to regulate commerce hinges on actual interstate commerce taking place. A contract between two entities in one state, under the laws of that one state, that merely mentions another state, isn't interstate commerce.
This Supreme Court could be friendly to invalidating that expansive interpretation though
so, big mismatch from the executive branch / agencies with the judicial branch which could completely warp our relationship with the Federal Government and what we find familiar in our way of life
But I dont think its as simple as saying “contract law is part of state law”
Sure it does. US Marshals are the muscle of the court system. They enforce federal court orders when necessary.
I say contingent because the history of the Supreme Court is far from a deductive process of pure interpretation.
I recognize the utility of the Supreme Court while dismissing any grandiose claims of objective morality or obvious legality. It is a body of people after all.
it seems like thats a mixture of the SEC and IRS
but yes, not at all relevant
its hard for me to understand why people get the agency acronyms mixed up and interchanged. I can sort of see it, but I’ve just never seen people be so confidently wrong outside of perhaps the eastern medicine crowd.
https://www.uschamber.com/finance/antitrust/chamber-comments...
>The Chamber and its membership are strongly opposed to the Proposed Rule. It would categorically ban nearly all noncompete agreements—regardless of individual circumstances, such as a worker’s skill, job responsibilities, access to competitively sensitive and proprietary information, bargaining power, or compensation—and require that organizations rescind all existing agreements and provide notice to affected workers of such rescission. Such a proposal fails to recognize that noncompete agreements can serve vital procompetitive business and individual interests—such as protecting investments in research and development, promoting workforce training, and reducing free-riding—that cannot be adequately protected through other mechanisms such as trade-secret suits or nondisclosure agreements. For centuries, courts have recognized the procompetitive benefits of noncompete agreements and balanced those benefits against any negative costs imposed by particular noncompete agreements. As perhaps acknowledged by the Commission’s request for comments on narrower alternatives, the Commission’s categorical ban would sweep in millions of noncompete agreements that pose no harm to competition, and in fact benefit the U.S. business community, economy, workers, and consumers.
https://www.uschamber.com/finance/antitrust/u-s-chamber-to-s...
>The Chamber will sue the FTC to block this unnecessary and unlawful rule and put other agencies on notice that such overreach will not go unchecked.