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They are saying FTC is engaging in law-making with this rule.

Wikipedia says the following about the FTC:

> Additionally, the FTC has rulemaking power to address concerns regarding industry-wide practices. Rules promulgated under this authority are known as Trade Rules.

But of course, that specific sentence is labeled "citation needed" so can't really dig deeper there. But taking it at face-value, isn't that one of the points of the FTC at least today, that they can setup these "Trade Rules"?

The recent Loper decision also expressly says Congress _can_ delegate to agencies, just that APA doesn’t do that delegation itself.

Eh, but there will always be some level of detail that was not delegated. That's the bad faith side of Loper. It essentially says that every detail of every instance must be expressly included in the legislation. Which just isn't possible.

Loper says nothing like that! I know that there were a lot of hot takes after the decision, but read it yourself. All Loper says is that when the law is ambiguous about agency powers, the courts get final say, they don't defer to the agency interpretation.

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

> are saying FTC is engaging in law-making with this rule

In part. They’re also claiming the Commission didn’t consider some material facts. (What they are is so far unstated.)

And let's face it, that's what they're doing. As much as I hate the cable companies, this weird governance structure where most of the legislation in the country is written by these extra-constitutional agencies is super sketchy. The government is not supposed to be able to make these massive changes to its own structure and separation of powers without the check of having to amend the constitution.

You’re right it’s much better for a do-nothing Congress attempt to legislate rather than let experts decide (which is also handled through a democratic process).

Much better to maintain the status quo. Wouldn’t want to upset a corpo now would we?

Imagine living in a common law country where judges legislate from the bench every day, then going online and complaining about regulatory agencies doing the thing they were created to do

Yes, and with the recent overturning of the Chevron doctrine, that's going to be tougher to fly.

Arbitrary-and-capricious and abuse of discretion are parallel deferences to and older precedents than Chevron. Junking Chevron doesn’t junk them.

This is a disingenuous argument. I too think they're engaging in law-making, but if that were their concern then they have the influence, time, and specialized knowledge to convince Congress to make it a law. You know, so everything's proper.

When the criminal says "hey, that's not fair, the legislature didn't make this thing illegal that should be illegal"... well, let's pass it as a law. Anyone not a criminal should be on board with that, including the complainants.

Make no mistake. This is fraud by any sane standard, fraud of the criminal sort. These companies should be fined tens of billions of dollars, if not more. Those who cannot afford such fines (Planet Fitness, etc), should be bankrupted, their assets sold at auction, and their executives and directors prohibited from ever holding such jobs again. Make the shareholders of these companies destitute.

> Anyone not a criminal should be on board with that, including the complainants

There are plenty of reasons to oppose new laws and rules than your own guilt.

There are plenty of reasons to oppose new arbitrary/irrelevant/random laws other than your own guilt.

No reason to oppose such a one as I hinted at. Other than your own guilt.

Here is one, and it will come up almost certainly.

A service has all your source code. Click to cancel is super easy. Privacy laws mean that data must be destroyed almost instantly. You accidentally click and POOF all your stuff is gone. So... to avoid that the service implements something like github - now you have to enter details of the repo, maybe 2fa in because security, and so on. An overzealous Lina Khan type now comes after a service doing the right thing making it hard to shoot yourself in the foot.

every new rule has lots of cases like this. At any given point a good number of the agency heads are ambitious folks trying to build a career of note, not actually protect society.

I don't think this scenario is credible in the sense that the FTC would have to receive complaints from devs who love nuking all their code, complaining that GH made it far too difficult to wipe away all their work.

No, they wouldn't have to receive complaints. The FTC doesn't sit around waiting for complaints to take action. They also take action (sometimes) after receiving complaints, but it's not the only way.

That's not why it's disingenuous, it's very simple: This will reduce their profits. Any additional analysis is superfluous.

There is a good reason why Harris doesn't use the FTC (under Lina Kahn) to gain political capital. This is the sort of stuff that actually matters, so naturally barely anyone ever talks about it.

An argument about what mechanism of law should be used, who has jurisdiction isn't disingenuous.

A class action lawsuit could likely work. This doesn't need to be a rule per se. These companies are behaving poorly and it should cost them billions - but we don't need to create red tape every time this happens.

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