6 ms·

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

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.
        macintux 3y ago
        Republicans originally celebrated Chevron because it took regulations out of the courts' hands.
        cryptonector 3y ago
        Did they? I wasn't there. But a reversal of Chevron doesn't necessarily mean that the courts get to do what they like. It may mean that the courts simply get to gut the bureaucratic state and kick the can to Congress -- that what's not forbidden by statute is allowed rather than that the courts act as regulators. There will be lower courts who will want to push their role as regulators, but the SCOTUS seems uninterested in playing that game given its "major questions" doctrine. It would be very strange for the court to create the major questions doctrine then impanel itself as the ultimate regulator.
      - cryptonector 3y ago
        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 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.

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.
        macintux 3y ago
        Republicans originally celebrated Chevron because it took regulations out of the courts' hands.
        cryptonector 3y ago
        Did they? I wasn't there. But a reversal of Chevron doesn't necessarily mean that the courts get to do what they like. It may mean that the courts simply get to gut the bureaucratic state and kick the can to Congress -- that what's not forbidden by statute is allowed rather than that the courts act as regulators. There will be lower courts who will want to push their role as regulators, but the SCOTUS seems uninterested in playing that game given its "major questions" doctrine. It would be very strange for the court to create the major questions doctrine then impanel itself as the ultimate regulator.
    - cryptonector 3y ago
      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 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.