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Comment by daft_pink | Hacker News Reader

I don’t think this is really an argument for or against non-complete agreements in the United States.

It’s basic United States separation of powers. If Congress passed a law eliminating or banning non-completes, then it would be legal.

As an asdie, it seems that the Biden administration is positioning itself to overstep it’s authority with things it feels would be popular with specific voting blocks that will obviously be overturned by the courts and then position that the courts are too partisan. They are satisfied with how this works with voters even if the actual policies cannot actually be implmemented.

I don’t think most serious observers felt this would make it through court review.

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In this case the US Congress has delegated to the FTC the power to regulate competition in interstate trade and markets. The relevant law is as follows:

" (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."

The FTC has argued noncompetes constitute unfair or deceptive practices which affect commerce. The judge has disagreed.

The term “unfair” is extremely vague, and now (as it probably should be, IMO), laws are interpreted by the judiciary. If Congress wants a specific practice banned, then they can make a law to do so, rather than allowing unelected career bureaucrats to interpret the law as they see fit.

It seems you are using the term career bureaucrat as a pejorative. Often, they have far more expertise in the subject than career politicians.

In any event, large decisions like this are made by political appointees appointed by the president and confirmed by the Senate.

With Chevron overturned, we are now allowing unelected career judges interpreting policy however they see fit. If we were still in a world where precedent mattered and judges set their personal beliefs about policy aside and instead neutrally interpreted conformance with the law, sure. But as we now are packing the judiciary with partisans, it seems we've just substitutef one bad for another.

Unelected career justices that make really dumb mistakes when it comes to basic facts: https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme...

> Often, they have far more expertise in the subject than career politicians.

This is not relevant to their right to legislate or assume duties that the constitution has delegated to congress.

It is relevant, because you require expertise to make rules. That seems fairly obvious to me but I suppose some segments of the political spectrum advocate blind rule making.

> delegated to congress

Right, and Congress has made that law, and that law says it's delegated to the FTC. What, Congress is simultaneously expected to make every single rule ever but they don't even have the rule making power to... delegate? That's too far? Seems absurd to me, almost intentionally insane with the end-goal of kneecapping rule making as a whole.

> It is relevant, because you require expertise to make rules.

No. In a democratic republic, you require the consent of the governed to make rules, not expertise.

I suppose it’s a good thing we elected the person who appointed the heads of federal agencies. You’re moving the goal posts.

The executive has no authority to legislate.

I don’t mean it as a pejorative - I agree that these folks are (often) experts in the area they’re working in. I mean only that the creation of laws does not belong to the bureaucracy, nor the interpretation of laws. Bureaucrats are also not as accountable to the voter (how many execute branch employees have been appointed by the president and confirmed by the senate?) as the legislature.

I think that overturning Chevron should light a fire under the collective behinds of both parties in Congress to write more specific laws that legislate precisely. I am sure it will be mayhem for a while, unfortunately, as decades of laws will be interpreted by the courts for the first time, but in the end it should result in a structure that I believe conforms better to the intended structure (legislators legislate laws which are executed by the executive branch and whether or not those laws are upheld is judged by the judiciary).

> If Congress wants a specific practice banned, then they can make a law to do so, rather than allowing unelected career bureaucrats to interpret the law as they see fit.

As opposed to unelected judges who, unlike the bureaucrats, have lifetime appointments, almost no political oversight, and are very difficult to remove.

The heads of federal agencies are appointed by the President and must be confirmed by the Senate and serve limited terms.

Well, yes, because separation of powers.

Congress makes the laws.

Government (bureaucrats) enforces the law.

Judges decide if government enforces the law correctly.

The important part is not how bureaucrats or judges get their job but that bureaucrats were de facto creating laws exceeding their authority.

Because the authority to create laws belongs to congress.

It's not a perfect system but it would be even worse without separation of powers.

Congress already made the law. The law says "these guys make the rules". To me, that counts.

The issue is that congress are not experts. They also move really, really slow.

I don't expect my congressmen to know if Red 40 is safe to consume, how much can be consumed, if it should be reported as an ingredient, etc. There's thousands of ingredients in food, I imagine. If that was written into law the law would be very long, no?

And then wouldn't it go out of date remarkably quickly? Hence, we have the FDA. They know about Red 40 and also medication.

What level of specificity do we actually need here? Does Congress need to list out, specifically, what molecular compounds are and are not allowed? That seems absolutely absurd to me.

It seems to me that once we get to the FTC or <insert any federal agency you personally disagree with>, suddenly the rules change and congress does need to be absurdly specific.

Funny how that works.

It's by design, they don't want any regulation. They want government to not work. They are doing their best to make both a reality, at the expense of the average person.

I understand your framing of this issue as judge vs FTC, but the reality is that delegation of authority the way this was written has never historically meant that they could create new laws, but simply that gave them the jurisdiction to enforce and create rules regarding existing laws related to unfair compeititon or deceptive business practices.

Since the FTC can’t point to an existing law that makes non-compete contracts illegal, it lacks the power to unilaterally declare them illegal.

Most observers didn’t think that this rule would pass court scrutiny.

I feel like this framing is extremely convenient and ignores how things work in other aspects of when congress delegates power to a specialized committee. For example, OSHA doesn’t need to find a specific law to deem a certain work practice unsafe and prohibit it, FDA doesn’t need to find a law against arsenic poisoning to take unsafe food product of the market, and the TSA doesn’t need a law against liquids in an airplane before they prohibit passengers from taking them onto the flight.

In every other instance what is required is that experts in the field back up their reasons with adequate research. In this case the FTC has done that, they have argued that non-compete is an unfair practice and shouldn’t be allowed, just like the NHTSA has argued that Airbags are an important enough safety feature that all new cars should be required to have it. Both have plenty enough research to back up their claims, but only the FTC needs a specific law? I wonder why that is.

Who are “most observers” and when were they all polled about this?

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