[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.