8 ms·

I suspect this won’t survive a challenge in front of the current Supreme Court, unfortunately.

arcticbull 3y ago
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.
- Uvix 3y ago
  That this is coming from the executive branch, not the legislative branch.
  - arcticbull 3y ago
    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 3y ago
      You're missing the fact that the current Supreme Court has been doing everything they can to kill Chevron Deference.
      - cogman10 3y ago
        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 3y ago
        > 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.
        deleted 3y ago
        [deleted]
        runako 3y ago
        > 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?
        cryptonector 3y ago
        > Eliminating Chevron will trade "unelected governmental representatives" who work at e.g. the FTC with "unelected governmental representatives" who are paid by the US Court system. Progress? Where do you get that from? Reversing Chevron will mean that Congress will have to work harder to get the regulations that it and the Executive want. If Congress were not disfunctional that would be a very good thing. And heck, reversing Chevron might well function to help Congress function more normally.
        runako 3y ago
        Congress won’t instantly have written laws to cover every regulation currently enforced by the federal government. Reasonably, it could take many years for those gaps to get filled. In the meanwhile, that means the courts are the key decision makers for large areas of government policy.
        3y ago
  - ixwt 3y ago
    And the current Supreme Court is not a huge fan of Chevron Deference, which this certain falls under...
- jfengel 3y ago
  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 3y ago
    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 3y ago
      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.
      - gamblor956 3y ago
        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.
      - unclebucknasty 3y ago
        >constitution was not written for slaves That's the point.
- cogman10 3y ago
  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 3y ago
    > 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.
JumpCrisscross 3y ago
> suspect this won’t survive a challenge in front of the current Supreme Court It may be aimed at prodding the Congress into action.
zer00eyz 3y ago
I am not entirely sure. Without anti compete stealing your competitors staff becomes a valid business strategy. Buy up the competitions best people and cripple them. This favors those with the most capital not the least.
- WrongAssumption 3y ago
  So employers end up competing with higher wages putting more money in the hands of employees, and talent goes to where it produces the most value, yeah that’s the point.
- akira2501 3y ago
  It also favors workers. By increasing salaries. And forcing companies to compete for them. Labor is a market. It is too often ignored in favor of private equity concerns.
- cogman10 3y ago
  I believe it will die more because of the originalist/textualism of the supreme court rather than considerations to which big businesses benefit (or are harmed by) this the most. The question will ultimately arise "by what authority can the FTC make such a sweeping judgement" and it would not surprise me to hear the SC rule that this is an overstep of the authority they were given by the laws creating and maintaining the FTC. Previously, the FTC could have argued that the chevron doctrine gives them this right. However, that is almost certainly about to be completely abolished this term. The right of contract is almost certainly going to be more important to most members of the supreme court than any other considerations. That's my 2 cents.
  - cryptonector 3y ago
    "Unfair" is an awfully vague term. This rule might be a test of the recent "major questions" doctrine. The SCOTUS appears poised to reverse the Chevron doctrine, which would have given the FTC a great deal of cover here. There are a lot of reasons that the Court might reject this rule or even the FTC's authority in general.
- 3y ago
deleted 3y ago
[deleted]
cryptonector 3y ago
If the SCOTUS overturns the Chevron doctrine, then this rule and probably all of the FTC's authority is on thin ice until Congress passes an act that says something more substantial and significantly less vague that "unfair business practices".
- seanw444 3y ago
  Which would be great. These agencies and bureaus have grown to an enormous scope, completely without the consent of the governed. Doesn't sound like a republic to me.
  - OkayPhysicist 3y ago
    It would be catastrophic, because Congress as it stands is utterly incapable of legislating. This is why the little stuff gets delegated to unilateral decision-making withing the executive branch: If making new rules was left to congress, they could never keep up. The world moves fast, congress moves slow. Instead, they delegate powers to agencies that can make rules within some tight purview and pursuant to some defined purpose, and if they step out of line Congress is completely within their power to legislate their preferred stance into law.
    - polski-g 3y ago
      > It would be catastrophic, because Congress as it stands is utterly incapable of legislating That is one theory; another is that they don't legislate because they have no need to -- because the bureaucracy handles everything.
    - logicchains 3y ago
      >It would be catastrophic, because Congress as it stands is utterly incapable of legislating. Congress is very capable of legislating about something that's relevant to their interests: look how fast the TikTok ban was passed.

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.

Uvix 3y ago
That this is coming from the executive branch, not the legislative branch.
- arcticbull 3y ago
  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 3y ago
    You're missing the fact that the current Supreme Court has been doing everything they can to kill Chevron Deference.
    - cogman10 3y ago
      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 3y ago
        > 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.
        deleted 3y ago
        [deleted]
        runako 3y ago
        > 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?
        cryptonector 3y ago
        > Eliminating Chevron will trade "unelected governmental representatives" who work at e.g. the FTC with "unelected governmental representatives" who are paid by the US Court system. Progress? Where do you get that from? Reversing Chevron will mean that Congress will have to work harder to get the regulations that it and the Executive want. If Congress were not disfunctional that would be a very good thing. And heck, reversing Chevron might well function to help Congress function more normally.
        runako 3y ago
        Congress won’t instantly have written laws to cover every regulation currently enforced by the federal government. Reasonably, it could take many years for those gaps to get filled. In the meanwhile, that means the courts are the key decision makers for large areas of government policy.
        3y ago
- ixwt 3y ago
  And the current Supreme Court is not a huge fan of Chevron Deference, which this certain falls under...
jfengel 3y ago
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 3y ago
  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 3y ago
    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.
    - gamblor956 3y ago
      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.
    - unclebucknasty 3y ago
      >constitution was not written for slaves That's the point.
cogman10 3y ago
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 3y ago
  > 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.

JumpCrisscross 3y ago

> suspect this won’t survive a challenge in front of the current Supreme Court It may be aimed at prodding the Congress into action.

zer00eyz 3y ago

I am not entirely sure. Without anti compete stealing your competitors staff becomes a valid business strategy. Buy up the competitions best people and cripple them. This favors those with the most capital not the least.

WrongAssumption 3y ago
So employers end up competing with higher wages putting more money in the hands of employees, and talent goes to where it produces the most value, yeah that’s the point.
akira2501 3y ago
It also favors workers. By increasing salaries. And forcing companies to compete for them. Labor is a market. It is too often ignored in favor of private equity concerns.
cogman10 3y ago
I believe it will die more because of the originalist/textualism of the supreme court rather than considerations to which big businesses benefit (or are harmed by) this the most. The question will ultimately arise "by what authority can the FTC make such a sweeping judgement" and it would not surprise me to hear the SC rule that this is an overstep of the authority they were given by the laws creating and maintaining the FTC. Previously, the FTC could have argued that the chevron doctrine gives them this right. However, that is almost certainly about to be completely abolished this term. The right of contract is almost certainly going to be more important to most members of the supreme court than any other considerations. That's my 2 cents.
- cryptonector 3y ago
  "Unfair" is an awfully vague term. This rule might be a test of the recent "major questions" doctrine. The SCOTUS appears poised to reverse the Chevron doctrine, which would have given the FTC a great deal of cover here. There are a lot of reasons that the Court might reject this rule or even the FTC's authority in general.
3y ago

deleted 3y ago

[deleted]

cryptonector 3y ago

If the SCOTUS overturns the Chevron doctrine, then this rule and probably all of the FTC's authority is on thin ice until Congress passes an act that says something more substantial and significantly less vague that "unfair business practices".

seanw444 3y ago
Which would be great. These agencies and bureaus have grown to an enormous scope, completely without the consent of the governed. Doesn't sound like a republic to me.
- OkayPhysicist 3y ago
  It would be catastrophic, because Congress as it stands is utterly incapable of legislating. This is why the little stuff gets delegated to unilateral decision-making withing the executive branch: If making new rules was left to congress, they could never keep up. The world moves fast, congress moves slow. Instead, they delegate powers to agencies that can make rules within some tight purview and pursuant to some defined purpose, and if they step out of line Congress is completely within their power to legislate their preferred stance into law.
  - polski-g 3y ago
    > It would be catastrophic, because Congress as it stands is utterly incapable of legislating That is one theory; another is that they don't legislate because they have no need to -- because the bureaucracy handles everything.
  - logicchains 3y ago
    >It would be catastrophic, because Congress as it stands is utterly incapable of legislating. Congress is very capable of legislating about something that's relevant to their interests: look how fast the TikTok ban was passed.