California banned non-competes years ago. There should be plenty of evidence available to use as a counter argument to this one judge's opinion.
Edit: In 1941, so it's been a while
Edit: In 1941, so it's been a while
1. Whether Congress gave rulemaking power to the FTC under the provision cited supporting the ban on non-competes, and
2. Whether, assuming FTC had been granted the authority by Congress to issue the rules, it acted properly procedurally under the Administrative Procedure Act when it did so.
The court ruled "no" on both.
(I haven't reviewed it in detail to have an opinion on whether it is correct on either point; banning non-competes is good policy, and it would be good if Congress did so directly.)
While the best approach would be a law, relatively few questioned the initial change because 1) It is good for nearly all parties 2) It makes sense that they could 3) Congress obviously was in no rush to make this change soon, if ever
Mathematical proofs are similar, rarely limited to a page. You want to leave little room for doubt.
That's not a policy judgement is a procedural one. Its not "it should not be done", but "the FTC did not do what is substantively required in assessing the facts and applying the law".
I'm not saying it is right, I am saying "arbitrary and capricious" is specifically a procedural finding in federal administrative law.
Procedures are imperfect. But they were introduced to keep away worse imperfections.
FTR, I do think that unpaid non-competes should be considered null and void. I also want this to be codified properly, so that no judge would have grounds to proclaim it frivolous and revoke.
If we had a proper congress, we wouldn't need to rely on these powers, but the supreme court has used their past 4 years to play into that chaos.
Not only do you need to have the jurisdiction and authority, but some random judge can decide you haven't justified it to her liking and block it anyway.
[1] Acknowledging that in this case, the judge also believes it's not within their authority.
Our legal system is far from infallible.
Congress absolutely has the right to regulate employment.
On what basis? What provision in the Constitution gives Congress that power?
The supreme court can strike it down, but congress very much can introduce federal bills pertaining to labor.
Are you saying there was a Constitutional amendment empowering Congress to impose a minimum wage? Which one?
Now if you want a stronger law, or to override the constitution, you perform an even more involved process which includes ratification from 75% of the states. But this is extremely difficult, by design.
>Which one?
In this case, the US code for this is The Fair Labor Standards Act Of 1938, last amended in 2011. But the amendment to this act that increases minimum wage was last amended in 2009.
Then why did you say "the entire amendment process" in response to my question?
> Think of laws as "anything goes, as long as it doesn't go against the constitution".
No, that's not how it works. The things Congress can legislate about are explicitly enumerated in Article I, Section 8 of the Constitution. Congress can't just pass any law it likes as long as it follows the process given in the Constitution.
> There's nothing in the constitution saying that the government can't enforce a minimum wage.
Again, this is backwards. I'm asking if there is anything in the Constitution that says Congress can enforce a minimum wage. If there isn't, Congress can't do it (unless the Constitution is amended to add that to the list of things Congress can legislate about).
> Now if you want a stronger law, or to override the constitution
There is no such thing as a "stronger law" or "to override the Constitution". The Constitution can be amended, which is what the more difficult process you describe does, but that doesn't "override" it or pass a "stronger law" in spite of it, it amends it.
Because I'm not a lawyer and my main point was "yes, congress can control this stuff"
>The things Congress can legislate about are explicitly enumerated in Article I, Section 8 of the Constitutio
I'm going to guess "setting minimum wage" isn't specifically enumerated in Article I, section 8. But yes, we have federal laws we revise overtime outlining that.
>I'm asking if there is anything in the Constitution that says Congress can enforce a minimum wage.
Probbaly not. But there are mechanisms on how congress can draft laws to enforce a minimum wage. Of course it can be challenged by the SCOTUS, but that's one hell of a hill to die on, even by 2024 standards.
It not adjusting for 15 years is pretty close. Sometimes apathy is the best malice.
>There is no such thing as a "stronger law" or "to override the Constitution". The Constitution can be amended
Did you want to talk about congress passing laws or argue pedantism against the spirit of HN? I'm not a lawyer so my language will not be precise as the centuries and thousands of pages of law talking about this.
My main point was that yes, congress can pass laws that regulate employment. No it doesn't need to be the 28th amendment to take effect. There's no point grilling me on the legalese because that is far outside my purview (and frankly, far outside the scope of a comment on Hacker News. I'm not drafting an entire book try and likely fail to convince someone who is simply prodding instead of giving their own opinions on the matter)
Ok. I am posting in another discussion downthread on whether "commerce" includes employment.
There are 5 axioms of Euclidean Geometry. Those 5 simple axioms have a vast number of implications as evidenced by all the theorems in Euclidean Geometry. In the same way there are logical conclusions to the statements in the Constitution. It is settled law that Congress can regulate employment.
Which ones, and how?
[0] https://www.law.cornell.edu/constitution/articlei#section8:~...
You are welcome to research the topic yourself. There are lots of books on the history of labor rights and labor struggles in the U.S. and the role courts have played in this.
But you might be right that the experts on this topic know less than you and that there is no justifiable implied power of Congress to regulate labor markets.
The same vast majority of legal experts, lawmakers, and those knowledgeable on the subject also believe:
That Congress can delegate legislative power to Executive Branch agencies, in spite of the explicit statement at the beginning of Article I that all legislative power shall be vested in Congress, as long as Congress gives an "intelligible principle" to guide the Executive branch agency (Hampton Co. v. United States);
That Congress can regulate a farmer growing wheat for his own use, that never leaves his property, under the Commerce Clause (Wickard v. Filburn);
That seizing private homes, evicting their owners, and turning the property over to a private developer is a "public use" under the meaning of the Fifth Amendment (Kelo v. New London).
Given the above (and those are just a few examples I thought of off the top of my head), I do not accept that what such a "vast majority" believe is a good guide to what the Constitution actually says.
Yes. The FTC’s powers over employment aren’t as clearly defined.
However, the Supreme Court decided to legislate from the bench and transfer that authority to unelected judges. Now, the federal government is all screwed up because none of the laws work as intended, and, so far, the judges wielding this newfound authority have demonstrated some mixture of incompetence and corruption.
I'd like to think they're all taking night school engineering and economics classes to bridge the newly-created skills shortage, but, somehow, I doubt it.
For example: In this case, the courts have come to the nonsensical conclusion that (quoting the article) "The FTC, which enforces antitrust laws and regulates competition", doesn't have the authority to regulate non-compete clauses, and further claims there's no evidence that the proposed regulation would do anything beneficial (despite 80+ years of case studies from California, which happens to have the largest economy in the US.)
No, the idea was to supply more power to unelected officials who are not under the scrutiny of the people. Said unelected officials being bought for by various private interests and ruling in their favor whenever and however possible, regardless of the constitution.
> However, the Supreme Court decided… transfer that authority to unelected judges.
No they didn’t. The authority went back to where it belonged, the legislative branch. The legislative branch has no power to defer legislation to anyone but themselves.
> [The FTC] doesn't have the authority to regulate non-compete clauses
They do; in regards to the federal law as it is written, of which there are no laws currently. If they wish to see non-competes die (and I would like for them die) then they have to do it properly: by getting a law made. Not by making a “ruling” which has no legal standing in a post-Chevron world.
Chevron deference has little to do with the legislative branch's power to delegate authority (and nothing at all to do with the legislative branch's power to explicitly delegate authority). It was about the judiciary not overturning a "reasonable interpretation" of ambiguities in the law by an agency, under the assumption that any ambiguities are implicit delegations of authority.
Overturning Chevron merely means that a judge can decide which of multiple reasonable interpretations of the law most represent Congress' intent, rather than deferring to the reasonable interpretation chosen by the agency.
To quote Chevron:
> Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
> (quoting the article) "The FTC, which enforces antitrust laws and regulates competition"
The issue is that you are quoting an article and not the actual law. There is no law that says the FTC has blanket authority to regulate "competition".
Here's US code Title 15§45(a); note that the subsequent acts have broadened the FTC purview rather than curtailed it. Later clauses in the subsection limit the FTC's power for foreign commerce, and define "unfair or deceptive acts or practices" but do not define "unfair methods of competition":
(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.
(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 57a(f)(3) of this title, Federal credit unions described in section 57a(f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227(b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.
Its always up for debate whether that is a good thing or a bad thing, but without Chevron much of what the agencies have done for decades wouldn't have been allowed.
If there was anything in federal legislation that did so, California wouldn't need to.
"If there was anything in federal legislation that [banned marijuana], [Kansas] wouldn't need to."
It's entirely possible for a state to think the Feds have the ability but not the will to do something, and go further while they wait.
Edit: to the replies– It's not just housing. Granted, housing is a big chunk of the budget. But it's everything else too. My grocery bill would go up 33%. My state income tax would go from zero to 8%. Gas is, on average, 43% more expensive. And I'm not looking at moving to the Bay Area. I'm looking at moving to Fresno.
The anti-non-compete is a good thing but it’s not anywhere near a big factor for the vast majority of people.
And yes, it's more expensive. But that's the price you pay for reaping the benefits of living in CA.
Edit: State of California Department of Finance also estimates this, but states that 2023 saw "Domestic out-migration slowed in 2022-23, to a net domestic migration loss of 260,400 people." [1]
What benefits? They said they are moving to Fresno, so not even decent weather.
If you can do your job remotely, then go for that.
If you can, but don't want to or you opted for hybrid, that's on you.
Otherwise, that shouldn't be a huge factor unless you drive a gas guzzler.
Is your job worth dieing for?
How many really "opt for hybrid" in these times where so many places are forcing RTO?
In some important ways, CA is very expensive. In others, its ludicrously cheap.
The rule “is arbitrary and capricious because it is unreasonably overbroad without a reasonable explanation”
California’s experience can be used to show that the rule is not capricious or unreasonably broad. The act establishing the FTC gave it broad powers and it does have the authority to do what it did. However, it is clear that the Supreme Court is going in a direction to greatly reduce regulatory authority. This ruling will likely stand but it shouldn’t.
Just because Congress is gridlocked on dumb stuff doesnt mean I want agencies doing it. I’m glad those agencies got handicapped ensuring this wont survive on appeal. There are consensus bridging Americans that can be elected to Congress, I don’t think its so absurd to prefer the people take that route instead of trying to shove through conveniences or ideological things by any means.
you know we’re going to have this Supreme Court’s law of the land for the next 50 years, instead of focusing on what’s impractical for you have you considered shaping the country in ways that are practical?
Genuinely curious because thats what I don’t get about the SCOTUS dismay crowd. Isn't there some agency out there you hate? Some regulation thats set you back? Go after that one. Focus on what you can control instead of what you cant.
What’s going to happen is that companies are going to pollute a lot more with impunity. It will be a wild west sort of situation. Our quest to become Ferenginar is well on its way.
A huge component of why I can’t take this “agency delegated” view seriously is because the people preferring it seemingly have no perception of just how much other agencies do, often in a protectionist way to an incumbent thats totally captured that agency. How difficult it was to get standing to even take an agency to court to alter it.
This adds color to my view: instead of focusing on what’s impractical for you, considered shaping the country in ways that are practical for you
See e.g. https://www.law.cornell.edu/supremecourt/text/405/156
I don’t want to live on this planet anymore.
Regardless, a federal judge need not consider the laws of any state when making a ruling on something like this.
Edit: read via archive link. So yeah:
> ... US District Judge Ada Brown in the Northern District of Texas wrote in the decision on Tuesday, concluding that the regulator “lacks statutory authority” to issue the rule.
And:
> Brown [...] was appointed by then-president Donald Trump
So she's a conservative-leaning judge who's skeptical of the executive branch's regulatory powers. Not news.
From which statute?
I'm not sure what a mostly boring procedural case about standards for summary judgement has to do with the FTC and/or non-compete clauses:
https://en.m.wikipedia.org/wiki/Anderson_v._Liberty_Lobby,_I....
https://en.wikipedia.org/wiki/Federal_Trade_Commission_Act_o...
Non-competes are unfair methods of competition, unfair practices affecting commerce, etc.
Section 5c states, in part:
> The findings of the Commission as to the facts, if supported by evidence, shall be conclusive.
Which is to the opposite side of the spectrum... "even if you have the authority, I can just say "I'm not convinced by the argument that you don't owe me, so I'll still block it"."
Either way, this will likely end up in a different court, and at a higher level, and get decided again.
What would require a special explanation is if the court found the opposite. It’s really appalling how many supposedly educated lawyers would arrive at the wrong answer to something a bright 10th grader could figure out from first principles.
But there’s probably some version of both the minimum wage and the ban on non-compete agreements that’s constitutional under the Commerce Clause. For example, if they were limited to employers that do business in multiple states or if they purported to apply when employees moved to a different state where non-competes were unenforceable.
The bigger problem is the separation of powers aspect. As you seem to recognize, banning non-competes seems like banning an unfair labor practice. That something that should be the subject of Congressional legislation, like the FLSA. Congress almost certainly didn’t intend to delegate to the FTC power over employment contracts, nor could it have given the FTC such an open-ended delegation of legislative authority.
While the US's particular brand of federalism might imply that (or might not), that specific bit need not be a feature of federalism in general.
> separation of powers (executive branch agencies enforce the law, they don’t make it)
Decades of legislative delegation and executive rulemaking would seem to disagree with that, no? I'm not making a value judgment on whether or not this is a good thing, just stating the facts on the ground. (SCOTUS seems to want to dismantle all that, though.)
> It’s really appalling how many supposedly educated lawyers would arrive at the wrong answer to something a bright 10th grader could figure out from first principles.
Or maybe reasonable people well-versed in the law can disagree in their interpretations? Not sure if you're a lawyer yourself (I'm not), but it seems to me that disagreements on legal interpretation aren't particularly uncommon, especially when it comes to disputes around separation of powers and state vs. federal powers.