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Not sure I understand your argument. Are you suggesting the federal government can’t, for instance, set a minimum wage?

• rayiner 2y ago
  The Supreme Court case upholding the constitutionality of the federal minimum wage as being a proper exercise of Commerce Clause power, United States v. Darby, rests on very weak reasoning: https://www.oyez.org/cases/1940-1955/312us100 https://www.oyez.org/cases/1940-1955/312us100 (“The Court held that the purpose of the FLSA was to prevent states from using substandard labor practices to their own economic advantage by interstate commerce. Congress acted with proper authority in outlawing substandard labor conditions since they have a significant impact on interstate commerce.”). Similar to Wickard v. Filburn, it gives Congress power over purely intrastate activity based on a tenuous connection to interstate commerce. But there’s probably some version of both the minimum wage and the ban on non-compete agreements that’s constitutional under the Commerce Clause. For example, if they were limited to employers that do business in multiple states or if they purported to apply when employees moved to a different state where non-competes were unenforceable. The bigger problem is the separation of powers aspect. As you seem to recognize, banning non-competes seems like banning an unfair labor practice. That something that should be the subject of Congressional legislation, like the FLSA. Congress almost certainly didn’t intend to delegate to the FTC power over employment contracts, nor could it have given the FTC such an open-ended delegation of legislative authority.