[Retric]

Non competes have a direct impact on interstate commerce so the Federal government has a clear mandate from the constitution.

Non competes are rarely enforceable as written, so the FTC has a clear mandate from both the unfair and deceptive standpoint.

[granzymes]

Obviously the Federal government is constitutionally authorized to regulate non-competes. That's not my argument at all. And the FTC is not banning unenforceable non-competes, the proposed rule bans all non-competes.

Regardless of which non-competes they choose to ban, however, the fact remains that this is the first time that the FTC is attempting to use Section 5 in this manner. It is very unclear that they have the authority to issue the proposed rule. My opinion is that they do not, and I think the courts will agree with me.

[EMIRELADERO]

Can you explain why they don't have that authority? Do you think Congress can't delegate its power through a statute? Or do you think that it hasn't done so in this speciifc (Section 5) instance?

[granzymes]

The latter. Courts are skeptical of agencies "discovering" new powers decades later that are based on vague sections of their enabling statutes. Congress could of course directly ban non-competes or amend the FTC Act to give the agency this power.

[Retric]

This is hardly a new power, the FTC already regulates business contracts such as franchise agreements. This extends as far as Fortnight’s item shop.

It’s one thing for agencies to suddenly focus on some new area tangential to their mandate, but this seems to be exactly that they are supposed to be looking at.

[Supermancho]

> And the FTC is not banning unenforceable non-competes, the proposed rule bans all non-competes.

Conditional (the condition of every single one going to court) versus unconditional. I see no reason the power to ban would be limited to a specific interpretation, in this case.

What is the argument (not just reiterating the point of contention)?