[arcticbull]

It'll be interesting to see what happens. It does sound like this clearly falls under interstate commerce, so within the scope of Fed action. Is there something that makes you think otherwise? Beyond court composition, that is.

[jfengel]

From a purely meta point of view:

This was something passed by a Democratic administration. Therefore Republicans hate it, and since 2/3 of the Supreme Court is Republican, it's likely to be struck down.

The actual reasoning comes later. Something-something-Federalist-Papers-something. I'm sure they'll have no trouble digging up some Founding Father who said something that sounds like banning this, if you squint right.

I know a great many lawyers, of both parties, who have more respect for the Supreme Court than I do. They are more informed and better educated than I am, so you should take my cynicism with a grain of salt. But in my experience, treating the Supreme Court as a partisanship machine yields extremely accurate predictions.

[gamblor956]

I'm sure they'll have no trouble digging up some Founding Father who said something that sounds like banning this, if you squint right.

When this country was founded, a lot of its residents were slaves, so I'm sure Thomas and Alito will find plenty of fodder in that for their "originalist" stance denying workers rights.

[VS1999]

I'm pretty sure the constitution was not written for slaves and no "originalist" stance would consider them. This is a silly "gotcha" that you just made up so you can get mad.

[unclebucknasty]

>constitution was not written for slaves

That's the point.

[gamblor956]

The 3/5th clause has been used by prior SCOTUSs to justify decisions, so it is not a gotcha. It's history...

On that note, Alito and Thomas had to use a pre-U.S. colonial law as their grounds to overturn Roe, so there is no limit to how far they will go to use "orignalism" to further their ideology.

[cogman10]

Interstate commerce would allow congress to make such a law. However, the real question will be if congress gave or intended to give the FTC the authority to perform this action.

This supreme court has been very down on federal powers, so it really would not be surprising if they pulled "the major questions doctrine" to ultimately kill this off.

[cryptonector]

> Interstate commerce would allow congress to make such a law. However, the real question will be if congress gave or intended to give the FTC the authority to perform this action.

That's my take as well. There is almost certainly no doubt that the commerce clause (under current precedents since the 30s) gives Congress the authority to make legal rules like this one. If there be doubt here then it will be about a) the ability of Congress to delegate this power with b) such a vague and all-encompassing term as "unfair" to describe the practices that the FTC may regulate, and/or c) whether this particular rule violates the "major questions" doctrine found in the recent W. Virginia vs. EPA case.

[Uvix]

That this is coming from the executive branch, not the legislative branch.

[arcticbull]

Sure, but FTC was authorized by congress (FTC Act 1914) to "prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce" which seems pretty cut and dried? I may be missing something, this just feels pretty reasonable.

[ixwt]

You're missing the fact that the current Supreme Court has been doing everything they can to kill Chevron Deference.

[cogman10]

Yup, this is very much the key to why I think this will be killed.

This supreme court is very much on track to eliminate any authority federal agencies have that aren't explicitly written into law. Effectively destroying federal agencies ability to make rules.

[iamthirsty]

> This supreme court is very much on track to eliminate any authority federal agencies have that aren't explicitly written into law. Effectively destroying federal agencies ability to make rules.

Very dramatic. Really, it's a reaction to Federal Agencies — unelected governmental representatives — unilaterally making their own rules out of the gray areas.

[runako]

> it's a reaction to Federal Agencies — unelected governmental representatives — unilaterally making their own rules out of the gray areas.

Eliminating Chevron will trade "unelected governmental representatives" who work at Federal Agencies like the FTC with "unelected governmental representatives" who are work for Federal Agencies that are the US Courts. Progress?

[ixwt]

Which is what Congress created them to do. And they are appointed, which the appointers are elected. In essence, they are elected, through the elected representatives which themselves are elected.

This is like saying that the US President is an unelected governmental representative. The population actually votes on a Representative for the Electoral College (EC). The Representatives in the EC then vote for President and Vice President. And yes, the EC Representatives are voted for because they say they will vote for a particular candidate (and as we figured out in 2012, many states have laws penalizing EC Representatives who don't vote how they committed to).

[cryptonector]

The SCOTUS had its "federalism revolution" in the 90s, and it ended in the Raich case when Scalia decided that leaving drug policy to the States was too much.

Under current precedents all the State decriminalization of marijuana and other drugs that we've seen are all unconstitutional. It was the liberal justices + Scalia who made it so. Those State laws decriminalizing various drugs are being tolerated by the feds -- for now.

The federalism revolution and its opposite both cut both ways.

On the whole I would prefer that the court resume its federalist revolution, even though some results I wouldn't like.

[ixwt]

And the current Supreme Court is not a huge fan of Chevron Deference, which this certain falls under...