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Comment by dragonwriter | Hacker News Reader

The question in the case isn't whether banning non-competes are good policy, or whether the federal government has the power to ban non-competes, but:

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.)

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This judge did actually rule that it was "arbitrary and capricious". Which is rich considering the FTC published a 500+ page document explaining their exact reasoning, including analysis of public comments, their legal authority, alternatives, and studies about the effects of non-compete bans in specific states.

> This judge did actually rule that it was "arbitrary and capricious".

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.

Jumping through a bunch of bureaucratic hoops and writing a 500 page report doesn't make you right.

Agreed. However, it makes it easier to succeed in appealing a ruling calling it “arbitrary and capricious”.

Does it? To me, a 500 page report makes it more likely to be arbitrary. A non-arbitrary decision should be much more easily justified. A 500 page justification on its face seems like trying to bury the opposition in paperwork because your actual justification is vaporware.

This is common in legal arguments. You want to make your case as airtight as possible. Keep in mind that there is tons of space per page; not a dense essay.

Mathematical proofs are similar, rarely limited to a page. You want to leave little room for doubt.

No, page count is not a relevant metric for whether the applicable standard is met.

Hard to call it “arbitrary and capricious” with a straight face though

It is easy if you don't read any of the 500 pages and are simply incentivized (directly or not) and want to block the elimination of non-competes.

Sure, they used the same overreaching to revoke abortion, and some states instated bans in record times.

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.

Obviously that wasn't the question, but you know that's what it's over. A bit naive to think we'd all love to have these nice things if only we can do them in a procedurally correct manner.

Careful with this logic. It leads all the way to the idea of a "good king" who'd quickly bring in nice things, unencumbered by any procedures. Or to just picking good things from store shelves and skipping the procedurally correct checkout and payment.

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.

agree! they should be banned, but the FTC was clearly (over)-reaching here. the correct way to do it is via law. even though it is the right thing to do, it's just the wrong way to do it. blocking and de-incentivizing monopolistic behavior like this is one of the most useful things a government should do.

Were they though? The Federal Trade Commission has say in how businesses operate, including their relationship with employees.

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

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