The U.S. Chamber of Commerce is likely to file suit: https://www.uschamber.com/finance/antitrust/chamber-comments...
Edit: it was a dig to the pro-competition façade some pro-business people put forward.
This supreme court is very much on track to eliminate any authority federal agencies have that aren't explicitly written into law. Effectively destroying federal agencies ability to make rules.
Very dramatic. Really, it's a reaction to Federal Agencies — unelected governmental representatives — unilaterally making their own rules out of the gray areas.
Eliminating Chevron will trade "unelected governmental representatives" who work at Federal Agencies like the FTC with "unelected governmental representatives" who are work for Federal Agencies that are the US Courts. Progress?
Where do you get that from?
Reversing Chevron will mean that Congress will have to work harder to get the regulations that it and the Executive want. If Congress were not disfunctional that would be a very good thing. And heck, reversing Chevron might well function to help Congress function more normally.
It would be very strange for the court to create the major questions doctrine then impanel itself as the ultimate regulator.
Even a fully-functional representative body can't write laws that are explicit enough to cover every possibility. And the U.S. Congress is far from functional.
The Court accepts that governments outsource regulation to e.g. the private developers of building codes. Similarly, we don’t benefit from a Congress mired in details over the minutae managed by many areas of the federal government.
It's anti-textualist, anti-originalist, anti-legal theory. It's a rule that the Supreme court has to invoke to achieve their objectives because they have no other avenue. The law was clear, the intent clear, and what congress desired was clear. Major questions should be solved by congress passing a revision to the law. The supreme court invoking it robs congress of their power because "we know better".
The reason it's such a bad rule is no lower court or litigant can really invoke it. It is only something the supreme court can use because it's undefined what qualifies as a "major question". Boiled down, it's "we don't like the law congress passed but we can't come up with a constitutional, textual, or historic reason why that law or it's application is invalid".
They would not use "major questions" if there were any other legal reasoning to go to.
Not really. First, any inferior court can also apply the major questions doctrine -- the SCOTUS is merely the final arbiter, but presumably in many cases either there will be no case (because the Executive will preemptively go to Congress) or the Executive will accept a lower court's decision w/o having to go all the way to the SCOTUS. Second, the doctrine is pretty clear: if the impact of a regulation is politically very controversial and its impact on the economy or liberty is quite large by comparison to more mundane regulations, then it belongs to Congress.
Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.
That's a tremendous stretch because Congress can be very vague in its delegation of authority and decades later the agencies it delegated power to can interpret anything they want into that language and -because of the oft-repeated point about Congress' disfunction- the agencies can't be stopped.
> Since "major questions" has no concrete definition,
It's like obscenity: you know it when you see it. But it's simpler: if there's a controversy, there's a chance that the issue is a major powers issue, and then you have to look at whether the liberty/economic impact of the regulation is extreme enough that Congress must decide it.
But then on the other hand, Congress is dysfunctional and is incapable of legislating.
This feels like a recipe for the unelected branch (the courts) to run everything.
- Congress is allowed to delegate to the executive (agencies)
- but if an agency goes so far in beyond the original understanding of its delegation as to cause a major political controversy, then it has overstepped its mandate
For example, if Congress were to delegate to the EPA the power to ban internal combustion engines at the EPA's choice, then the EPA could absolutely do that. (Perhaps Congress couldn't if the court revisits Wickard, who knows, but if Congress could, then so could EPA). But if Congress were to pass a bill regarding clean air and decades later the EPA decides that a clean air mandate means the EPA can ban ICEs, then that would clearly be a major question (well, today it would be; maybe in another two decades it wouldn't be), the courts would not (today) allow such a regulation, and EPA would have to go ask Congress to ban ICEs or to delegate that authority to the EPA.
> This feels like a recipe for the unelected branch (the courts) to run everything.
If the courts were to decide that EPA can't ban ICEs under the Clean Air Act but that the courts can, that would be pretty insane. Perhaps before Chevron the courts sometimes did that sort of thing, but they wouldn't now if Chevron is reversed because this SCOTUS absolutely does not want that and will write an opinion that reflects that -- that much is clear. So I think this is hyperbole. Instead if Chevron is reversed, and together with W. Virginia vs. EPA, "major questions" will not be decided by the courts -- major questions would go undecided as long as Congress leaves them undecided, with the status quo preserved. That would not be a bad outcome!
Because "major political controversy" is very subjective and subject to manipulation (we had a "major political controversy" over the name of French fries in the 2002 era), the "then" part of your clause governs in most cases. That is "it has overstepped its mandate."
Congressional oversight of the executive agencies involves the two elected branches working together to govern. Delegating more power to the unelected branch is not a healthy way for a republic to operate.
Just because some people do not like the results of their delegation does not mean that Congress is similarly dissatisfied with those same results. Some parties want Congress to be dissatisfied and exercise its powers. Congress regulated a single app made by a single company this week; Congress can act when it wants to do so.
I think that's abdication.
This is like saying that the US President is an unelected governmental representative. The population actually votes on a Representative for the Electoral College (EC). The Representatives in the EC then vote for President and Vice President. And yes, the EC Representatives are voted for because they say they will vote for a particular candidate (and as we figured out in 2012, many states have laws penalizing EC Representatives who don't vote how they committed to).
No, that's not how that works, ironically because in the name — Electoral College — the President is, elected. Regardless by the populous or not.
Appointees are politically chosen, yes by a representative, but usually with major political leanings built into the rules they make, with little to no oversight.
Under current precedents all the State decriminalization of marijuana and other drugs that we've seen are all unconstitutional. It was the liberal justices + Scalia who made it so. Those State laws decriminalizing various drugs are being tolerated by the feds -- for now.
The federalism revolution and its opposite both cut both ways.
On the whole I would prefer that the court resume its federalist revolution, even though some results I wouldn't like.
This was something passed by a Democratic administration. Therefore Republicans hate it, and since 2/3 of the Supreme Court is Republican, it's likely to be struck down.
The actual reasoning comes later. Something-something-Federalist-Papers-something. I'm sure they'll have no trouble digging up some Founding Father who said something that sounds like banning this, if you squint right.
I know a great many lawyers, of both parties, who have more respect for the Supreme Court than I do. They are more informed and better educated than I am, so you should take my cynicism with a grain of salt. But in my experience, treating the Supreme Court as a partisanship machine yields extremely accurate predictions.
When this country was founded, a lot of its residents were slaves, so I'm sure Thomas and Alito will find plenty of fodder in that for their "originalist" stance denying workers rights.
On that note, Alito and Thomas had to use a pre-U.S. colonial law as their grounds to overturn Roe, so there is no limit to how far they will go to use "orignalism" to further their ideology.
That's the point.
This supreme court has been very down on federal powers, so it really would not be surprising if they pulled "the major questions doctrine" to ultimately kill this off.
That's my take as well. There is almost certainly no doubt that the commerce clause (under current precedents since the 30s) gives Congress the authority to make legal rules like this one. If there be doubt here then it will be about a) the ability of Congress to delegate this power with b) such a vague and all-encompassing term as "unfair" to describe the practices that the FTC may regulate, and/or c) whether this particular rule violates the "major questions" doctrine found in the recent W. Virginia vs. EPA case.
It may be aimed at prodding the Congress into action.
Without anti compete stealing your competitors staff becomes a valid business strategy. Buy up the competitions best people and cripple them.
This favors those with the most capital not the least.
Labor is a market. It is too often ignored in favor of private equity concerns.
The question will ultimately arise "by what authority can the FTC make such a sweeping judgement" and it would not surprise me to hear the SC rule that this is an overstep of the authority they were given by the laws creating and maintaining the FTC.
Previously, the FTC could have argued that the chevron doctrine gives them this right. However, that is almost certainly about to be completely abolished this term.
The right of contract is almost certainly going to be more important to most members of the supreme court than any other considerations. That's my 2 cents.
So does the US Supreme Court lol
More seriously I think the issue is going to be whether it's executive overreach, not whether it's good or bad for a competitive marketplace.
If you don’t want to them to leave, then entice them to stay.
Getting rid of noncompetes puts workers and companies on more even footing, reducing the large power difference.
Ideas aren't property and they are stolen. You can steal a glance as well, but you know that has nothing to do with property either.
I also could have used the colloquialism poaching, but then I would be hearing about how people aren't big game and hunting is bad.
> Getting rid of noncompetes puts workers and companies on more even footing
We already know it doesn't have to: https://forums.appleinsider.com/discussion/185051/judge-appr...
That fine was probably minor compared to the wage suppression.
> If you don’t want to them to leave, then entice them to stay.
Poaching all the staff away from a company is illegal in CA, it's called raiding. This change will not create laws out of thin air.
You argument is that this case demonstrates there isn't any problem and that companies don't have actually have a significant power advantage? Not very convincing.
> Poaching all the staff away from a company is illegal in CA, it's called raiding. This change will not create laws out of thin air.
This is only true in the specific narrow situation where there is intent to harm the company. There is nothing wrong with the general case where you simply want to hire those workers.
And how would that not be an "unfair business practice"? Vague legal terms are problematic.
Otherwise, why aren't well capitalized competitors in California hiring up the best people at their competitors and crippling competition, as it were? We just don't see this happen on a large scale like this suggestions.
Now, that's my take on it at charitably. My honest opinion about it is simply: who cares. If you want people to stay, give them reasons to stay that aren't the legal equivalent of holding a gun to their head
CA has a corresponding law that prevents this. The last time I looked the FTC wasnt creating at NEW law to prevent the other side of this coin:
Rule 3: Workforce “Raids” Are Illegal in California
Technically, poaching employees is not illegal in California, but restrictions on workplace raids are mentioned in the legislation. In fact, state law prohibits companies from acting in bad faith to solicit a mass amount of employees from their competitors to intentionally hurt their business. This is called “raiding,” and when your competitor does it, you can file a tortious interference claim against them. Most of these cases require an employment contract to be successful in pursuit of damages.
FROM: https://www.flclaw.net/is-poaching-employees-illegal-califor...
[0]: that the California government anticipated and defined, to their credit
Instead, they delegate powers to agencies that can make rules within some tight purview and pursuant to some defined purpose, and if they step out of line Congress is completely within their power to legislate their preferred stance into law.
That is one theory; another is that they don't legislate because they have no need to -- because the bureaucracy handles everything.
Congress is very capable of legislating about something that's relevant to their interests: look how fast the TikTok ban was passed.
Clicking through to the website and seeing the kind of articles on there makes it pretty obvious that's not the case though, even ignoring the .com domain.