[Buttons840]

Ask your attorney friends if a farmer growing food on their own land to feed to their own animals is "interstate commerce", and ask them to explain that to you.

What I'm referring to here is Wickard v Filburn in which the Supreme Court ruled that a farmer growing food on his own land to feed to his own animals was participating in "interstate commerce" and could thus be regulated by the federal government.

This is a big part of why the federal government can control things like which plants you are allowed to grow in your home.

But when the FTC tries to regulate something like non-competes and protect average workers the corporate attorneys come out of the woodwork, "oh no, the federal government can't do that!"

[mike_hearn]

Is it the same people? It seems like the current Supreme Court is very much against decisions like the weird farmer one and likely to roll such things back.

[cryptonector]

During the Federalist Revolution period of the the 90s, before Scalia got spooked by drug legalization, the court was definitely heading in the direction of reversing Wickard. Perhaps now that the court is willing to reverse big cases like Roe and Chevron (so it seems) it will also be willing to reverse Wickard.

[modeless]

The difference here is that Congress isn't banning noncompetes. The FTC is doing it. Different branch of government.

[nojito]

Congress established the FTC.

[mminer237]

People seem a bit confused. There are a few separate legal questions here:

1. Whether Congress can ban noncompetes nationwide through its ability to regulate interstate commerce.

2. Whether Congress can say "so-and-so can make any laws he wants about x".

3. Whether this is in scope of the FTC's mission of preventing unfair trade practices.

To me, #1 is a clear no for intrastate agreements, but under Wickard it is constitutional.

#2 is yes under Chevron.

#3 seems an obvious yes.

The only question would be if SCOTUS decides now is the time to correct what it sees as prior incorrect decisions.

[cryptonector]

The SCOTUS likes to decide things on the narrowest possible grounds. That means that if it wanted to reverse this rule it would want to find grounds relating to (3), which as you note it probably could not.

The court could still decide that this rule is a "major powers question" and so belongs to Congress. This would allow the court to not have to reach any question of whether the FTC has broad powers, whether the act that created the FTC is constitutional, or whether Wickard was correctly decided. Therefore it seems more likely that the court would do that -again, if it wanted to reverse the FTC here- than anything else.

Can you imagine if the court ruled the FTC to be unconstitutionally created? They wouldn't risk that chaos.

[mminer237]

Yeah, regardless of how the justices feel about this, I can't imagine them striking it down for the reasons you describe.

[cryptonector]

I don't think they will strike this down at all. The reasons I listed would be if they were to strike this down, and it's just my guess.

[modeless]

Congress established many parts of the executive branch. Nevertheless they remain part of the executive branch, a separate branch of government from Congress, and this distinction is legally important.