[JumpCrisscross]

> FTC doesn't really have the ability to do this, since contract law is part of state law

The federal government can absolutely regulate both employment and contract law. (Merger agreements are contracts. The FTC was established to block bad mergers.)

Whether the FTC can do this is untested. But that’s more a Chevron issue than a federal powers one.

[bdw5204]

Relying on a Chevron argument is not particularly wise given the pending Supreme Court cases Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo where the Court is expected to overturn Chevron:

https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

[faeriechangling]

Yup, and the motivation is explicitly to go after unelected “administrative state” technocrats legislating by decree… such as through exactly what they’re doing here.

Unelected technocrats legislating by decree is the purview of the Supreme Court not the FTC, so sayeth the majority of current Supreme Court justices. I imagine a bunch of stuff is about to break since elected officials cannot pass jack shit in this hyper-partisan era.

[slotrans]

> The federal government can absolutely regulate both employment and contract law

Where in Article I Section 8 does the Constitution grant that power?

[dctoedt]

> Where in Article I Section 8 does the Constitution grant that power?

The Commerce Clause, when interpreted expansively — as federal courts have largely done. (We'll see what happens with the 6-3 conservative majority of this SCOTUS incarnation.)

[chrisco255]

They've actually gone through different eras of interpreting expansively or restrictively.

[bombcar]

The snarky answer would be the 13th amendment.

[timeflex]

Generally federal law will preempt state law. See the Court's decisions regarding California's attempt to ban arbitration agreements in employment contracts.

Now, that doesn't mean the Supreme Court won't come up with their own hot take, but at some point appeals and district courts are just going to say no when they send a case back.

What is the Supreme Court going to do? Federal judges can only be removed by impeachment of the House and conviction of the Senate. The Supreme Court has no power to enforce its decisions.

[HaZeust]

As Jackson quipped; "John Marshall has made his decision; now let him enforce it." We'll see where this goes, and if it's honored.

[Aloisius]

The quote is likely apocryphal.

There was nothing to enforce as the court didn't impose any obligations on Jackson.

[HaZeust]

Jackson was VERY vocal about his disapproval for the Marshall Supreme Court.

The obligations imposed by the ruling within Worcester v. Georgia was that states (specifically Georgia) could not enact and enforce regulations on Reservations and Native American land because of pre-existing treaties. It was never claimed that the quote is about what decisions were made with regards to Jackson; it was about what decisions were made for Georgia, and that Jackson had no intent to enforce them.

Jackson was very much complacent to Georgia's continued intent to regulate, and later remove, Native Americans from their designated land.

[banish-m4]

The odds of the conservative activism SCOTUS siding with employees and COTUS (bought off by corporate lobbyists) passing a worker-friendly prohibition on noncompetes are both zero. OTOH, it's not outside the realm of possibility that COTUS might pass a federal law superseding laws in California, Colorado, Illinois, Oregon, Nevada, Washington state, and Washington DC to roll back states rights favoring workers. Similar state bills in NY and NJ died in committee in 2022.

[oceanplexian]

There is widespread bipartisan support for noncompetes. NY, a bastion of liberal politics still overwhelmingly refuses to make noncompetes illegal.

[toomuchtodo]

> There is widespread bipartisan support for noncompetes. NY, a bastion of liberal politics still overwhelmingly refuses to make noncompetes illegal.

NY Governor Hochul vetoed it because she is a hack politician and yielded to Wall Street pressure. Politicians with a spine (or constitution, if you prefer) are in short supply.

https://apnews.com/article/noncompete-agreement-bill-veto-ne...

> But in recent months, the legislation had come under fierce attack by Wall Street and top business groups in New York. They argued the agreements are necessary to protect investment strategies and keep highly-paid workers from leaving their companies with prized inside information and working for an industry rival.

[banish-m4]

That's the rule rather than the exception in the US as politicians go. Campaign finance reform failed because most (not all) politicians are indeed crooks who accept gold bars from foreign governments, embezzle from their campaign to buy luxury goods, or pay hush money to porn stars.

Let me refer you to George Carlin's approach: https://youtu.be/xIraCchPDhk

[banish-m4]

> There is widespread bipartisan support

At which level(s), or do you mean voters? Voter sentiment has essentially no bearing on public policy, and it was even proven with data in a Princeton study confirming what we already knew. [0]

If I might quote Gore Vidal: There is only one party in the United States, the Property Party … and it has two right wings: Republican and Democrat. Republicans are a bit stupider, more rigid, more doctrinaire in their laissez-faire capitalism than the Democrats, who are cuter, prettier, a bit more corrupt — until recently … and more willing than the Republicans to make small adjustments when the poor, the black, the anti-imperialists get out of hand. But, essentially, there is no difference between the two parties.

Partisanship tribalism is a divide-and-conquer gambit that has been largely successful in keeping Americans fighting each other counterproductively and voting against their own interests.

0. https://www.cambridge.org/core/journals/perspectives-on-poli...

[oceanplexian]

Chances are extremely high that the current Supreme Court nullifies or greatly restricts Chevron. These kind of announcements are fuel for the fire and are likely to accelerate its demise.

They will kill this faster than they killed the COVID vaccine mandate. Govt. agencies can’t make laws, even if we may agree with them (I actually do in this case). However this isn’t the role of an unelected government agency.

[xpe]

> Govt. agencies can’t make laws

This is an unfortunately common response that often misses the point: U.S. government agencies do indeed have the power to make decisions with the force of law. Rule-making is a valid authority (subject to legal review of course)

[adastra22]

There are two cases in the Supreme Court right now that are expected to rule on this, overturning the ability for regulatory authorities to make rules covering things not explicitly stated in law.

[xpe]

I'm not familiar with those cases, but it seems to me that if such rules go in favor of "agencies only get to clarify where explicitly allowed" then there will a lot of undesirable consequences. Assuming legal ambiguities remain, with less administrative power, there will be less clarity! Less clarify on application, administration, and enforcement.

Perhaps the courts will have to step in clarify? But this won't solve the administrative issue. If agencies don't have "agency" to do their jobs well, that would be ironic.[1] Perhaps Congress will be motivated to write better laws?[2]

[1] I'm deeply suspicious of efforts to undermine agencies under the cover of "only Congress makes law"... I suspect is it often a guise of undermining the laws one party does not like. Or, sometimes, even as an effort to undermine the idea of regulation at all. The latter point is hardly hidden -- it is central to a lot of right-leaning rhetoric which seems to boil down to "regulation bad, freedom good". This level of reasoning would have Milton Friedman rolling in his grave, as some regulation _provably_ helps reduce market failures. (And even center-left people typically want markets to work well.) But I digress.

[2] Hah. The idea that we would give Congresspeople and their staff even more responsibility to specify laws _without_ an associated increase in their competence for those areas where the law applies strikes me as foolhardy.

[adastra22]

It’s called Chevron deference / doctrine, and yes the consequences would be far reaching. Whether the net benefit is good or bad is largely a subjective matter of political opinion.

[xpe]

Thanks. I just read [1].

> Whether the net benefit is good or bad is largely a subjective matter of political opinion.

Without knowing the intention of the author above, when I see the phrase "subjective matter of political opinion", it makes me wonder if it serves as a "semantic stop sign" or "thought-terminating cliché"[2].

WRT net benefits... it is one thing to have differing predictions about what will happen and quite another to assess each possible scenario.

I recognize differences of opinion and want a society that protects the freedoms to have them. However, to me, opinions matter much less than reasonable claims based on evidence. Luckily, when reading [1], there are many testable claims embedded in the arguments of the various justices.

For example, in the cases of an ambiguous law, who is better suited to understand the ambiguity... agency experts or judges? Which groups have better knowledge of the domain? Which have experience in engaging in sustained discussions with the industries they are regulating? Agencies have an objective advantage for both.

Here is my point: say we go through the, say, top twenty arguments and we dig into the details. I predict that most opinions one hears at the outset from the public don't survive contact with reality. Those opinions have to get tossed. What remains? Nuanced assessments of better and worse scenarios. By making these assessments more nuanced, the hope is we find workable and sensible compromises.

[1] https://www.scotusblog.com/2024/01/supreme-court-likely-to-d...

[2] https://en.wikipedia.org/wiki/Thought-terminating_cliché

[xpe]

It is wise to look at an argument with extra caution when you see the phrase “unelected government agency”.

There are (of course) valid powers available to agencies. The question is what powers are valid.

Beware the dark arts of rhetoric. I’m familiar with spotting this one because my constitutional law professor used it often. He helped us to see right through it.

Logic and argumentation should win, not words designed to scare or muddle.

Intellectually honest comments reveal their fundamental guiding moral and political philosophies, rather than painting a one sided picture.

Edits done as of 6:30 pm eastern time.

[jameshart]

Indeed. Government agencies are overseen by officers of the United States, appointed by the president with the advice and consent of the senate, typically to terms greater than the length of either a presidential to senate term.

Just like Judges.

The idea that courts are the only delegates of the elected representatives of the people who are allowed to figure out the nuances of how to carry out the democratically legislated responsibilities of government is a bit of a brainworm that has infected US politics and makes the Supreme Court a little too important.

[mminer237]

The Supreme Court often dismisses cases for the entire reason that constitutionally it can't make laws. That's Congress's job. It's fair to be critical of how much Congress can punt its responsibility to a 4th branch of government with little oversight.

[jameshart]

Kicking back a law because it's constitutionally not the business of government to have laws that say that, is very different than kicking back a law because while it is something upon which legislation could constitutionally be had, and the executive is acting in accordance with the law as written, the judiciary doesn't like the way in which the legislature chose to phrase how it delegated authority... that's a different story.

Executive agencies aren't a "fourth branch of government with little oversight", they're article II section 2 'departments' of the executive, established by law, and controlled by the president and appointed officers, with as much oversight as congress legislates to require, plus accountability to the courts for remaining within the bounds of their legal and constitutional authority.

[mminer237]

The FTC is not an executive department. It is an independent agency. Though nominally considered part of the executive branch, it has been delegated Congress's authority while also been given intentionally limited executive oversight/control.

Personally, I feel Congress giving its authority to the executive branch breaks constitutional separation of powers period. Could Congress grant the President autocratic authority? SCOTUS says it has to give sufficient standards to delegate authority and inconsistently says yes or no to different attempts, but really what congressional standard did the FTC use to arrive at this (admittedly good) rule?

[oceanplexian]

It’s not really a brainworm, it’s the fact that people see the government in radically different ways.

My view is that as long as there’s genuine consent, two parties agree to something, no one is coerced, both are of sound mind, two human beings should be able to enter into any contract you can imagine. It doesn’t matter if that’s Gay Marriage or a firearms transaction.

The role of government should only be to ensure that that both parties engaged fairly. The minute you want to start using the government to ban one thing or another based on some moral imperative, is the minute you stopped respecting the autonomy of other people and decided to force your morality on another through collective force.

[ihumanable]

> no one is coerced

How do you square that up though with the power differential in employer / employee relations? The employee has to work or be destitute. That gives employers a tremendous amount of power in any contract negotiation.

Coercion doesn't have to be a gun to your head. Every person in the workforce is under a pretty coercive force which is that without gainful employment you are going to go without housing, medicine, transportation, etc. Without any collusion on the part of the employers, the market works to select those employers who can create the contract conditions most favorable to profit production. We shouldn't be surprised that "favorable to profit production" and "disadvantaging the worker" are often closely aligned, every company would like to pay as little as possible for their input and get as much profit as possible out of their outputs. Labor, or Human Resource, as corporations like to call it, is an input and so there's a tremendous systemic pressure to craft contracts in the way that will get the maximum profit out of every employee.

Sure the employee didn't have to sign that unfair employment contract, they could have elected to sign one of hundreds of unfair employment contracts. The fact that they have a large variety of unfair contracts to select from doesn't on its own increase the fairness of the contract. The "collective force" of "you need money to operate in society" means that all workers are coerced to sign "the best deal they can get" which doesn't mean it's going to be a good deal or a fair deal for the worker, just the best that the market has.

[xpe]

The world consists of more than two people. It isn't just about them. Am I misunderstanding your point?

Many individuals care about society as a useful construct -- a construct that is not easily calculable from individual utilities. [1] This would suggest that even utilitarians should care about society -- unless they think they get to define what matters to their precious individuals. [2]

[1] Sure, one can say society is _causally_ derived from individual actions, but... (1) the derivation of what society looks like is not predictable enough for the time scales we care about; (2) individuals are influenced by society, as a matter of perception

[2] If I may attempt some satire, I wouldn't at all be surprised if some utilitarians are a sort of "mini-autocrat" at heart -- in the sense they get to decide what counts in every individual's utility function. e.g. "I value you, individuals!, yes I do!... but I get to tell you what really matters for your happiness! and after I do that I decree that the summation operator is how we put it all together!"

[oceanplexian]

There’s not a better, more compact way to explain the problem. Congress, when they delegated powers to the FTC, did not envision them banning private non-compete agreements. It’s a non-trivial issue. Lawmakers weren’t stupid, non-competes existed at the time they formed the FTC. They had the power, the knowledge, and the intelligence to draft a law. They did not.

The burden of proof is on the Government to prove that Congress explicitly intended the agency to regulate this part of contract law. Like I said before, I personally support banning non-competes. But it has to be done legally. It has to be done within the constraints of a system of laws.