5 ms·

I agree that noncompetes are bad, but the FTC declaring it without a congressional mandate seems deeply questionable.

Arrath 4y ago
Is such a move not one of the purposes of these agencies staffed by (supposedly) experts and run by appointees? Legislature is so dysfunctional that the House can't elect a speaker at this very moment, and who knows if such a measure would even see the light of day in committee let alone get to the floor if the lobbyists got wind of it. If the lawmakers take issue with the ruling they can issue a mandate to roll it back, no?
- mschuster91 4y ago
  The problem is, the courts may decide to kill it off before Congress gets out of its gridlock and approve or deny it, as many other regulations have been. Executive decrees or questionably legal actions of government agencies are fundamentally bad - but have become commonplace and a necessity of life since Congress is fundamentally broken. And at the core, the problem is that the US' political system unlike everyone else's system does not enforce that the executive has a parliamentary backing. That provides a lot of perverse incentives that historically were only prevented by a basic code of ethics and conduct - but since the Obama days, open obstructionism has become acceptable and a target in itself in politics.
  - hannasanarion 4y ago
    Courts overturning regulations like that is exceedingly rare. The doctrine of chevron deference means that, in the absence of overwhelming evidence to the contrary, it is the prerogative of executive agencies to interpret their own mandate as they wish.
    - camgunz 4y ago
      100%, plus the Commerce Clause is super powerful. I wouldn't put it past this Court to take a whack at it, but its powers are broad.
    - amanaplanacanal 4y ago
      They have been using the major question doctrine to toss regulations lately though, which it appears to me they made up out of whole cloth.
  - prottog 4y ago
    > Executive decrees or questionably legal actions of government agencies are fundamentally bad - but have become commonplace and a necessity of life since Congress is fundamentally broken. Two wrongs don't make a right. Everyone involved should remember that the US is a federation of fifty states that share sovereignty with the federal government, and that nothing stops the various states from enacting their own noncompete bans in their better-functioning state legislatures. They can even do that in cooperation with other states, in order to accomplish the goal in a harmonious manner; see the Uniform Commercial Code for an example. I don't see gridlock in Congress as an example of it being fundamentally broken. I see it working as intended, since only few matters have such broad agreement among the people in all fifty states that Congress should decide on it for the whole nation. In fact, the fewer things decided on in that fashion, the better for the country as a whole.
    - duped 4y ago
      > They can even do that in cooperation with other states This is actually super interesting in that Article 1. Section 10 suggests this requires Congressional approval. I'd also that the US is a de jure federation of independently sovereign states, whereas we are a de facto central government with weak provincial governments. States cannot act independently or as a peer to the federal government or with each other, and state sovereignty has been eroded since the ratification of the Constitution. Debating whether or not Congress or the States should make these laws is purely academic. 250 years of history has shown that the only way for meaningful change to be enacted anywhere is for it to be done everywhere, by Congress, with the support of the Executive, and without a meddling Court to nullify it. If we lived in a country that you're hypothesizing about, we would still be segregated.
      - prottog 4y ago
        > This is actually super interesting in that Article 1. Section 10 suggests this requires Congressional approval. The UCC is not an interstate compact in the sense of Article 1 Section 10. They're merely the same code that each state chose to adopt, with no legal ability for any other state to question if one state chooses to deviate from it in part or whole. It absolutely does not require Congressional approval. Interstate compacts are more like treaties that states make with each other. You're absolutely right that state sovereignty has been steadily eroding, and I posit that this is to everyone's disadvantage. As in your example, just because states' rights were once used to champion the evil cause of slavery then later Jim Crow, does not mean that the whole concept of states' rights is wrong. Besides, tort and contract laws are historically the primary domain of state law. I don't see why the US Congress has to be the one to define it for everyone.
- ffggvv 4y ago
  no. they have specific laid out bounds with which they can operate in. it's deeply dangerous and disturbing for them to try to exceed that. especially because they aren't elected. they don't get to just exceed those bounds and wait for legislature to issue a ruling to roll it back. it's quite the opposite. its the equivalent of if the tsa started trying to pat you down before you got in your car. and then saying its okay because congress can just roll it back.
lovich 4y ago
The FTC believes this is part of their congressional mandate as per their interrogation of Section 5 of the FTC act[1]. If I recall correctly they were enforcing this under one legal theory previously that the Supreme Court struck down so I presume they have come up with a new legal theory. [1] https://www.federalreserve.gov/boarddocs/supmanual/cch/200806/ftca.pdf https://www.federalreserve.gov/boarddocs/supmanual/cch/20080...
whimsicalism 4y ago
The FTC does have a congressional mandate for administrative discretion.
ffggvv 4y ago
too bad people's brains can't process stuff like that. they can only do a single level of "do i agree with the outcome" and not whether or not its actually legal or sets a bad precedent. or god forbid, think what powers that would give their political opponent when they take power. student debt was another one. whether or not you agree with forgiving it, it's deeply disturbing for the president to knowingly do something unconstitutional and do an endrun around congress' power of the purse. With the hope that no one has standing to challenge it
comte7092 4y ago
The FTC has a congressional mandate (otherwise it wouldn’t exist), the only argument is whether this falls within the mandate they’ve been given. The FTC claims non competes undermine competition, which is within their mandate, and honestly not that tough of an argument to make.
solomatov 4y ago
IANAL, but the US federal law roughly consists of USC, i.e. US code written by congress, and CFR, code of federal regulations, written by executive branch of the government. They can't write anything they want, only using powers given to them by congress in USC.

Is such a move not one of the purposes of these agencies staffed by (supposedly) experts and run by appointees? Legislature is so dysfunctional that the House can't elect a speaker at this very moment, and who knows if such a measure would even see the light of day in committee let alone get to the floor if the lobbyists got wind of it. If the lawmakers take issue with the ruling they can issue a mandate to roll it back, no?

mschuster91 4y ago
The problem is, the courts may decide to kill it off before Congress gets out of its gridlock and approve or deny it, as many other regulations have been. Executive decrees or questionably legal actions of government agencies are fundamentally bad - but have become commonplace and a necessity of life since Congress is fundamentally broken. And at the core, the problem is that the US' political system unlike everyone else's system does not enforce that the executive has a parliamentary backing. That provides a lot of perverse incentives that historically were only prevented by a basic code of ethics and conduct - but since the Obama days, open obstructionism has become acceptable and a target in itself in politics.
- hannasanarion 4y ago
  Courts overturning regulations like that is exceedingly rare. The doctrine of chevron deference means that, in the absence of overwhelming evidence to the contrary, it is the prerogative of executive agencies to interpret their own mandate as they wish.
  - camgunz 4y ago
    100%, plus the Commerce Clause is super powerful. I wouldn't put it past this Court to take a whack at it, but its powers are broad.
  - amanaplanacanal 4y ago
    They have been using the major question doctrine to toss regulations lately though, which it appears to me they made up out of whole cloth.
- prottog 4y ago
  > Executive decrees or questionably legal actions of government agencies are fundamentally bad - but have become commonplace and a necessity of life since Congress is fundamentally broken. Two wrongs don't make a right. Everyone involved should remember that the US is a federation of fifty states that share sovereignty with the federal government, and that nothing stops the various states from enacting their own noncompete bans in their better-functioning state legislatures. They can even do that in cooperation with other states, in order to accomplish the goal in a harmonious manner; see the Uniform Commercial Code for an example. I don't see gridlock in Congress as an example of it being fundamentally broken. I see it working as intended, since only few matters have such broad agreement among the people in all fifty states that Congress should decide on it for the whole nation. In fact, the fewer things decided on in that fashion, the better for the country as a whole.
  - duped 4y ago
    > They can even do that in cooperation with other states This is actually super interesting in that Article 1. Section 10 suggests this requires Congressional approval. I'd also that the US is a de jure federation of independently sovereign states, whereas we are a de facto central government with weak provincial governments. States cannot act independently or as a peer to the federal government or with each other, and state sovereignty has been eroded since the ratification of the Constitution. Debating whether or not Congress or the States should make these laws is purely academic. 250 years of history has shown that the only way for meaningful change to be enacted anywhere is for it to be done everywhere, by Congress, with the support of the Executive, and without a meddling Court to nullify it. If we lived in a country that you're hypothesizing about, we would still be segregated.
    - prottog 4y ago
      > This is actually super interesting in that Article 1. Section 10 suggests this requires Congressional approval. The UCC is not an interstate compact in the sense of Article 1 Section 10. They're merely the same code that each state chose to adopt, with no legal ability for any other state to question if one state chooses to deviate from it in part or whole. It absolutely does not require Congressional approval. Interstate compacts are more like treaties that states make with each other. You're absolutely right that state sovereignty has been steadily eroding, and I posit that this is to everyone's disadvantage. As in your example, just because states' rights were once used to champion the evil cause of slavery then later Jim Crow, does not mean that the whole concept of states' rights is wrong. Besides, tort and contract laws are historically the primary domain of state law. I don't see why the US Congress has to be the one to define it for everyone.
ffggvv 4y ago
no. they have specific laid out bounds with which they can operate in. it's deeply dangerous and disturbing for them to try to exceed that. especially because they aren't elected. they don't get to just exceed those bounds and wait for legislature to issue a ruling to roll it back. it's quite the opposite. its the equivalent of if the tsa started trying to pat you down before you got in your car. and then saying its okay because congress can just roll it back.

lovich 4y ago

The FTC believes this is part of their congressional mandate as per their interrogation of Section 5 of the FTC act[1]. If I recall correctly they were enforcing this under one legal theory previously that the Supreme Court struck down so I presume they have come up with a new legal theory. [1] https://www.federalreserve.gov/boarddocs/supmanual/cch/200806/ftca.pdf https://www.federalreserve.gov/boarddocs/supmanual/cch/20080...

whimsicalism 4y ago

The FTC does have a congressional mandate for administrative discretion.

ffggvv 4y ago

too bad people's brains can't process stuff like that. they can only do a single level of "do i agree with the outcome" and not whether or not its actually legal or sets a bad precedent. or god forbid, think what powers that would give their political opponent when they take power. student debt was another one. whether or not you agree with forgiving it, it's deeply disturbing for the president to knowingly do something unconstitutional and do an endrun around congress' power of the purse. With the hope that no one has standing to challenge it

comte7092 4y ago

The FTC has a congressional mandate (otherwise it wouldn’t exist), the only argument is whether this falls within the mandate they’ve been given. The FTC claims non competes undermine competition, which is within their mandate, and honestly not that tough of an argument to make.

solomatov 4y ago

IANAL, but the US federal law roughly consists of USC, i.e. US code written by congress, and CFR, code of federal regulations, written by executive branch of the government. They can't write anything they want, only using powers given to them by congress in USC.