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How much authority/jurisdiction does this judge/ruling have? It seems like the kind of thing that might easily get appealed and lost.

bitwize 2y ago
The conservative SCOTUS has a vendetta against the administrative state. The overturn of the bump stock ban is just the beginning: they're going after Chevron deference. This, combined with conservative justices tending to favor contract law over consumer/employee protection, means that any federal ban on noncompetes is likely to be overturned absent a statute from Congress.
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- lolinder 2y ago
  > the administrative state. The overturn of the bump stock ban is just the beginning It's not even sort of the beginning. The conservative stance on the role of the Supreme Court has been pretty clear for a long time and this court has been ruling that way for a few years now. Their theory is that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets. The precedent that they've overturned has consistently been in line with this logic: they've said over and over again that if America wants a law then Congress should create it, rather than relying on executive rulemaking that gets overturned every time an administration changes or on unelected judges legislating from the bench. Whether or not you agree with them on specific issues, I think we can all agree that the current status quo where worker rights take dramatic swings every time a new party takes control of the presidency is a ridiculous situation that needs to be fixed. I want a nation of laws, not a nation of administrative rules that have a 4-year shelf life.
  - kbolino 2y ago
    I do wonder if this strategy will actually move the needle at all. Conservatives have tried something like this at least twice before: lower taxes to starve the government of revenue and force cuts (largely failed and just got routed around with massive deficit spending) and interpreting the Anti-Deficiency Act in such a way that the government "shuts down" if Congress hasn't explicitly funded it, presumably in the hopes that Congress would responsibly pass a budget well before the deadline (obviously also a failure in general, since Congress waits till the last minute regularly now and shut downs happen about once or twice a Presidential administration). Edit: Make that at least three times: they've also capped the civil service which has just caused an explosion in contractors.
    - lolinder 2y ago
      Yeah, I don't know. Congress is so completely and utterly broken that I'm unsure it can be fixed. Legislating from the bench is better than the administrative rulemaking in that it's at least generally more stable, but I do think that the conservative justices have a point that the actual laws should be more directly accountable to the people than the Supreme Court is. Basically, we should be able to change the laws, but it shouldn't be as simple as winning a single national election because that makes things too unstable.
      - kbolino 2y ago
        The only system that aligns more with voters that I'm aware of is the Westminster system but it has is faults too. It is after all the same system that gave us "Yes, Minister" which illustrated and lampooned the fact that the civil service and elected politicians are distinct factions each with their own agendas rarely in alignment with each other (never mind the factions within each faction).
      - School-Cotton 2y ago
        The problem with the U.S. system is twofold: first, an unusually high amount of cooperation is required to pass any law (majority of the House, 60% of the Senate, and the presidency). Second, the first-past-the-post electoral system naturally leads to a two-party duopoly and polarization that makes cooperation very difficult. No other democracy in the world has both of these flaws although some have one of them (e.g. the UK). The best systems in practice seem to be proportional-representation parliamentary ones. They generally result in coalitions of multiple generally centrist parties so things don’t change too abruptly, but passing new laws is at least possible. Of course some parties refuse to cooperate with each other: in Germany for example no mainstream party will work with the right-wing AFD, and right-leaning mainstream parties additionally refuse to work with the left-wing Die Linke (legal successor to the East German ruling party although substantially more moderate nowadays). However this doesn’t stop the big mainstream parties from working together to an extent that would be unimaginable in the U.S. It’s indeed probably impossible to fix in the U.S. because it’s so hard to amend the constitution in such a radical way.
granzymes 2y ago
This is a ruling from an Administrative Law Judge, which basically functions as a strong recommendation for how the National Labor Relations Board should decide a particular case. ALJs are Article II “in house” judges that specialize in the law of one particular administrative agency. They don’t have Constitutional life tenure protections and mostly do claims processing work for the Social Security Administration. The next step in this case is for a 3-member panel of the NLRB (a 5 member board appointed by the President, currently with 4 members) to decide whether to accept the proposed ruling of the ALJ or to substitute their own opinion of how the case should come out. Orders of the NLRB are not self-executing, so parties can appeal an adverse judgement to the Circuit of Appeals of their choice and the NLRB can cross-petition for enforcement of their decision. The Federal courts have final say over questions of law like “are non competes a violation of labor law”. The entire process takes several years to play out.
- dataflow 2y ago
  That's exactly what I was wondering, thank you!
- baryphonic 2y ago
  Not to be too pedantic, but ALJs are technically Article I judges (or more precisely judges over Article I tribunals). The Constitution lists two different sources of judicial power, the first in Article I section 8 and the second in Article III. Article III courts have judges with life tenure, protection of salaries and are subject to review only by other Article III appeals courts including the Supreme Court. Article I courts have judges with fixed terms of office, and Congress can cut their salaries. All Article I courts are subject to review by Article III courts. There's an open controversy about how much deference the Article I courts in administrative agencies are owed by Article III courts, arising mostly from Chevron v NRDC. That decision requires Article III courts to defer to Article I courts' interpretations of their statutes and even their administrative rules except in extreme circumstances. Several justices on the Supreme Court find Chevron deference problematic, but it currently is the law of the land.

bitwize 2y ago

The conservative SCOTUS has a vendetta against the administrative state. The overturn of the bump stock ban is just the beginning: they're going after Chevron deference. This, combined with conservative justices tending to favor contract law over consumer/employee protection, means that any federal ban on noncompetes is likely to be overturned absent a statute from Congress.

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lolinder 2y ago
> the administrative state. The overturn of the bump stock ban is just the beginning It's not even sort of the beginning. The conservative stance on the role of the Supreme Court has been pretty clear for a long time and this court has been ruling that way for a few years now. Their theory is that Congress makes the laws, the Executive branch enforces them, and the Judicial branch interprets. The precedent that they've overturned has consistently been in line with this logic: they've said over and over again that if America wants a law then Congress should create it, rather than relying on executive rulemaking that gets overturned every time an administration changes or on unelected judges legislating from the bench. Whether or not you agree with them on specific issues, I think we can all agree that the current status quo where worker rights take dramatic swings every time a new party takes control of the presidency is a ridiculous situation that needs to be fixed. I want a nation of laws, not a nation of administrative rules that have a 4-year shelf life.
- kbolino 2y ago
  I do wonder if this strategy will actually move the needle at all. Conservatives have tried something like this at least twice before: lower taxes to starve the government of revenue and force cuts (largely failed and just got routed around with massive deficit spending) and interpreting the Anti-Deficiency Act in such a way that the government "shuts down" if Congress hasn't explicitly funded it, presumably in the hopes that Congress would responsibly pass a budget well before the deadline (obviously also a failure in general, since Congress waits till the last minute regularly now and shut downs happen about once or twice a Presidential administration). Edit: Make that at least three times: they've also capped the civil service which has just caused an explosion in contractors.
  - lolinder 2y ago
    Yeah, I don't know. Congress is so completely and utterly broken that I'm unsure it can be fixed. Legislating from the bench is better than the administrative rulemaking in that it's at least generally more stable, but I do think that the conservative justices have a point that the actual laws should be more directly accountable to the people than the Supreme Court is. Basically, we should be able to change the laws, but it shouldn't be as simple as winning a single national election because that makes things too unstable.
    - kbolino 2y ago
      The only system that aligns more with voters that I'm aware of is the Westminster system but it has is faults too. It is after all the same system that gave us "Yes, Minister" which illustrated and lampooned the fact that the civil service and elected politicians are distinct factions each with their own agendas rarely in alignment with each other (never mind the factions within each faction).
    - School-Cotton 2y ago
      The problem with the U.S. system is twofold: first, an unusually high amount of cooperation is required to pass any law (majority of the House, 60% of the Senate, and the presidency). Second, the first-past-the-post electoral system naturally leads to a two-party duopoly and polarization that makes cooperation very difficult. No other democracy in the world has both of these flaws although some have one of them (e.g. the UK). The best systems in practice seem to be proportional-representation parliamentary ones. They generally result in coalitions of multiple generally centrist parties so things don’t change too abruptly, but passing new laws is at least possible. Of course some parties refuse to cooperate with each other: in Germany for example no mainstream party will work with the right-wing AFD, and right-leaning mainstream parties additionally refuse to work with the left-wing Die Linke (legal successor to the East German ruling party although substantially more moderate nowadays). However this doesn’t stop the big mainstream parties from working together to an extent that would be unimaginable in the U.S. It’s indeed probably impossible to fix in the U.S. because it’s so hard to amend the constitution in such a radical way.

granzymes 2y ago

This is a ruling from an Administrative Law Judge, which basically functions as a strong recommendation for how the National Labor Relations Board should decide a particular case. ALJs are Article II “in house” judges that specialize in the law of one particular administrative agency. They don’t have Constitutional life tenure protections and mostly do claims processing work for the Social Security Administration. The next step in this case is for a 3-member panel of the NLRB (a 5 member board appointed by the President, currently with 4 members) to decide whether to accept the proposed ruling of the ALJ or to substitute their own opinion of how the case should come out. Orders of the NLRB are not self-executing, so parties can appeal an adverse judgement to the Circuit of Appeals of their choice and the NLRB can cross-petition for enforcement of their decision. The Federal courts have final say over questions of law like “are non competes a violation of labor law”. The entire process takes several years to play out.

dataflow 2y ago
That's exactly what I was wondering, thank you!
baryphonic 2y ago
Not to be too pedantic, but ALJs are technically Article I judges (or more precisely judges over Article I tribunals). The Constitution lists two different sources of judicial power, the first in Article I section 8 and the second in Article III. Article III courts have judges with life tenure, protection of salaries and are subject to review only by other Article III appeals courts including the Supreme Court. Article I courts have judges with fixed terms of office, and Congress can cut their salaries. All Article I courts are subject to review by Article III courts. There's an open controversy about how much deference the Article I courts in administrative agencies are owed by Article III courts, arising mostly from Chevron v NRDC. That decision requires Article III courts to defer to Article I courts' interpretations of their statutes and even their administrative rules except in extreme circumstances. Several justices on the Supreme Court find Chevron deference problematic, but it currently is the law of the land.