I haven't yet seen an argument for non-competes that applied to non C-suites and wasn't already heavily covered by IP law. Is the problem at hand anything more than a cash grab from abusive employers?
Back to the chevron thing though, how many of you have ever gotten a parking ticket? Imagine two years after the fact some bureaucrat sent a letter informing you that because of your previous bad decisions you're unable to drive. Driving is a privilege, and the state will no longer grant that privilege to you.
Is that decision fair? You already went through the court system (or otherwise paid it off (implicitly, often explicitly, pleading guilty)), a judge took the time to judge your misdeeds, and you had some penalty applied, perhaps the max allowed by the law. Now though, some part of the executive branch wants to ignore any judicial action and assert their opinions.
Even before this ludicrous supreme court case, that was a thing that happened. A whole office in Minnesota is dedicated to extra-judicial traffic rulings above and beyond what the judge thought was reasonable.
I think it's wrong. Empower somebody like the FAA to make fast decisions when there are actually lives at stake, but everything else which could reasonably be judged one way or the other should go through somebody capable of judging it (maybe...a judge). Even FAA rulings probably ought to be vetted once they're less time sensitive.
> Imagine two years after the fact some bureaucrat sent a letter informing you that because of your previous bad decisions you're unable to drive. Driving is a privilege, and the state will no longer grant that privilege to you.
Ex post facto laws are generally unconstitutional. Generally -- especially as it imposes a new punishment after you've already been punished.
Something like this would almost certainly be implemented as "X driving infractions committed on or after [date law is effective]."
[edit] in administrative law, retroactive application is only permitted when congress has explicitly given retroactive power to an agency.
This is not an ex post facto law - the question is purely "are the terms of your contract enforceable?". For example I can make a contract that has a term "all people of gender/race/age X must be paid no more that 50% of the amount paid to people of gender/race/age Y", but if I were to then sue a person that agreed to this contract they would immediately be able to say "that term is not enforceable".
The FTC ruling on non-competes is no different - no one is saying "a non-compete clause breaks the law in a way that would allow criminal or civil suits", they are saying "this clause is not enforceable" (plenty of standard contract terms are not enforceable depending on state and/or country, and the unenforceable nature of the term does not - for better or worse - invalidate the entire contract).
I don’t think this is really an argument for or against non-complete agreements in the United States.
It’s basic United States separation of powers. If Congress passed a law eliminating or banning non-completes, then it would be legal.
As an asdie, it seems that the Biden administration is positioning itself to overstep it’s authority with things it feels would be popular with specific voting blocks that will obviously be overturned by the courts and then position that the courts are too partisan. They are satisfied with how this works with voters even if the actual policies cannot actually be implmemented.
I don’t think most serious observers felt this would make it through court review.
In this case the US Congress has delegated to the FTC the power to regulate competition in interstate trade and markets. The relevant law is as follows:
"
(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.
(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 57a(f)(3) of this title, Federal credit unions described in section 57a(f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227(b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce."
The FTC has argued noncompetes constitute unfair or deceptive practices which affect commerce. The judge has disagreed.
The term “unfair” is extremely vague, and now (as it probably should be, IMO), laws are interpreted by the judiciary. If Congress wants a specific practice banned, then they can make a law to do so, rather than allowing unelected career bureaucrats to interpret the law as they see fit.
It seems you are using the term career bureaucrat as a pejorative. Often, they have far more expertise in the subject than career politicians.
In any event, large decisions like this are made by political appointees appointed by the president and confirmed by the Senate.
With Chevron overturned, we are now allowing unelected career judges interpreting policy however they see fit. If we were still in a world where precedent mattered and judges set their personal beliefs about policy aside and instead neutrally interpreted conformance with the law, sure. But as we now are packing the judiciary with partisans, it seems we've just substitutef one bad for another.
I don’t mean it as a pejorative - I agree that these folks are (often) experts in the area they’re working in. I mean only that the creation of laws does not belong to the bureaucracy, nor the interpretation of laws. Bureaucrats are also not as accountable to the voter (how many execute branch employees have been appointed by the president and confirmed by the senate?) as the legislature.
I think that overturning Chevron should light a fire under the collective behinds of both parties in Congress to write more specific laws that legislate precisely. I am sure it will be mayhem for a while, unfortunately, as decades of laws will be interpreted by the courts for the first time, but in the end it should result in a structure that I believe conforms better to the intended structure (legislators legislate laws which are executed by the executive branch and whether or not those laws are upheld is judged by the judiciary).
It is relevant, because you require expertise to make rules. That seems fairly obvious to me but I suppose some segments of the political spectrum advocate blind rule making.
> delegated to congress
Right, and Congress has made that law, and that law says it's delegated to the FTC. What, Congress is simultaneously expected to make every single rule ever but they don't even have the rule making power to... delegate? That's too far? Seems absurd to me, almost intentionally insane with the end-goal of kneecapping rule making as a whole.
> If Congress wants a specific practice banned, then they can make a law to do so, rather than allowing unelected career bureaucrats to interpret the law as they see fit.
As opposed to unelected judges who, unlike the bureaucrats, have lifetime appointments, almost no political oversight, and are very difficult to remove.
The heads of federal agencies are appointed by the President and must be confirmed by the Senate and serve limited terms.
Congress already made the law. The law says "these guys make the rules". To me, that counts.
The issue is that congress are not experts. They also move really, really slow.
I don't expect my congressmen to know if Red 40 is safe to consume, how much can be consumed, if it should be reported as an ingredient, etc. There's thousands of ingredients in food, I imagine. If that was written into law the law would be very long, no?
And then wouldn't it go out of date remarkably quickly? Hence, we have the FDA. They know about Red 40 and also medication.
What level of specificity do we actually need here? Does Congress need to list out, specifically, what molecular compounds are and are not allowed? That seems absolutely absurd to me.
It seems to me that once we get to the FTC or <insert any federal agency you personally disagree with>, suddenly the rules change and congress does need to be absurdly specific.
It's by design, they don't want any regulation. They want government to not work. They are doing their best to make both a reality, at the expense of the average person.
I understand your framing of this issue as judge vs FTC, but the reality is that delegation of authority the way this was written has never historically meant that they could create new laws, but simply that gave them the jurisdiction to enforce and create rules regarding existing laws related to unfair compeititon or deceptive business practices.
Since the FTC can’t point to an existing law that makes non-compete contracts illegal, it lacks the power to unilaterally declare them illegal.
Most observers didn’t think that this rule would pass court scrutiny.
I feel like this framing is extremely convenient and ignores how things work in other aspects of when congress delegates power to a specialized committee. For example, OSHA doesn’t need to find a specific law to deem a certain work practice unsafe and prohibit it, FDA doesn’t need to find a law against arsenic poisoning to take unsafe food product of the market, and the TSA doesn’t need a law against liquids in an airplane before they prohibit passengers from taking them onto the flight.
In every other instance what is required is that experts in the field back up their reasons with adequate research. In this case the FTC has done that, they have argued that non-compete is an unfair practice and shouldn’t be allowed, just like the NHTSA has argued that Airbags are an important enough safety feature that all new cars should be required to have it. Both have plenty enough research to back up their claims, but only the FTC needs a specific law? I wonder why that is.
I really think federal authorities should start ignoring rulings from Texan judges. The amount of corporate bankruptcy venue shopping alone should tell us the appointment process has corrupted the supposedly impartial nature of the judiciary there
I agree, but the fact that a judge in Texas has the power to harm workers throughout the country while we wait for the government to act is a problem, and there's an asymmetry in how quickly a single judge can make a decision versus the entire apparatus of the federal government
Do you understand what you're advocating for? You're advocating for literal lawlessness. For anarchy. For giving the government absolute power.
Given that government abuses non-absolute power you can bet that when they get absolute power it'll take about a second to turn any country into Putin's Russia.
And you're saying that other states affected by these decisions should have no recourse for judicial activism that happens in some gerrymandered area that happened to get a judge appointed. The alternative to that isn't lawlessness, it's mitigating a vulnerability in the separation of powers, and I think our eye should be toward patching that vulnerability. We live in a very different world than the one in which this system was designed
In Europe if you want to force a non-compete you need to pay full salary for the duration, so if someone enforced non compete for 5 years I could sit home and play games while earning salary
I was told by an attorney years ago that non-competes were only enforceable if they had a reasonably defined scope and specifically were unenforceable in Right to Work states if it effectively prevented you from working at all.
Reasonable scope was something like max 2 years, specific distance from current office that wasn’t excessive (couple of miles) or had specifics about taking existing customers.
Same. The biggest issue with non-competes is the intimidation factor. People are scared to challenge them even though without proper compensation and scope they are basically worthless. Few if any judges will prevent someone from making a living.
I also think they are mostly fine in the cases where they are properly constructed (compensation and scope).
That's the case in some European countries and it seems fair. If you don't want me competing, you pay for that privilege. Otherwise, the non compete is just an abuse of power.
I have signed a two-year non-compete as a part of my contract in the Netherlands. The official government website says basically "yeah so non-competes are binding, but if you go to court, you have a decent chance of voiding it, no promises though, good luck".
Regarding the EU document, there's a very long way between "EU noticed a problem" and "EU fixed a problem".
In other first world countries it's certainly different. In Germany everyone gets paid time off, which is separate from paid sick time (there is usually no hard limit, but some fair use policy applies in some jobs). I can't be fired for random reasons on the spot - if I get fired for random reasons, they still have to pay me for a 1-3 month period that I work while I look for a new job.
Firing on the spot is only legal in exceptional circumstances, e.g. when they can prove you simply didnt work your hours, or something (outside of paid and u paid leave, paid and unpaid sick leave).
We also get maternal and paternal leave which is very nice.
Overtime, health insurance, etc. are also dictated to some degree by law in a lot of countries.
The fact that you (Americans) feel enslaved is because you choose to elect a government that doesn't care about any of that.
Your points are valid, but I was talking about non-competes specifically, which companies try to apply outside of America too, even if they are not legally binding (I'm Swedish and I've signed a non compete in the past, knowing fully well I could choose to ignore it because that specific clause is illegal here, but still)
My point was more that most people can't afford to not work in the industry they've spent years building competence in, and therefore a no-compete clause makes them very vulnerable to poor practices from the employer. The employer might (in theory) treat their employees poorly knowing that they cannot leave the company, and the employees will be forced to put up with it because leaving employment with a non-compete deal means they can't pay their mortgage.
Calling it slavery is hyperbolic to be sure, but non-competes are undeniably a step in that direction.
>The fact that you (Americans) feel enslaved is because you choose to elect a government that doesn't care about any of that.
It really depends on the income-strata that you occupy, I feel. Hourly, physical laborers and service workers seem to suffer under a system that prima facie makes you wonder what century you're in. On the other end, salaried and technical knowledge workers enjoy quite a flexible arrange of time off policies, relaxed working times, and great health benefits. And then everything in between. I would like to think that only one of these camps feel enslaved.
Americans do have this problem of not taking enough vacations though. But I think there is some cultural component to that...
No, six to ten states (mostly small, red states with shitty economies) that aren’t aligned with the majority of Americans elect the President and inflict their misery on the rest of us. Believe me, most people in states that matter want universal healthcare (which we already almost have, just in the most convoluted and corporate-fleece way possible), vacation and sick leave.
> Believe me, most people in states that matter want universal healthcare (which we already almost have, just in the most convoluted and corporate-fleece way possible), vacation and sick leave.
In a federal system, as the US is, these are all things you can implement on the state level. You do not need to win at a national level to implement it.
No American feels enslaved in any meaningful sense of the word. Americans have it better than 99.999% of all humans who ever lived, and it's not particularly close.
A number of Americans (>1) see their imprisonment as a modern form of slavery, one that is explicitly allowed by the US Constitution:
The U.S. Constitution bans slavery except as punishment for a crime ... In Texas, some prison farms are located on the same land as former slave plantations.
It's "meaningful" in that they feel (with good justification) that they have been found guilty by a system designed to single them out and that they are railroaded into a lifetime of unpaid servitude.
You may disagree with their feelings, but it remains that your blanket statement:
> No American feels enslaved in any meaningful sense of the word.
People loosing their liberties because of breaking the law — as determined by due process — is not slavery. They may feel enslaved, but again they cannot feel enslaved in any meaningful sense of the word because they are not enslaved in any meaningful sense of the word.
The 13th amendment to the U.S. Constitution seems to facially disagree with you. It specifically permits criminal punishment as an exception to its ban on "slavery [or] involuntary servitude".
You would still have to show instances of it happening to support a claim that it's happening.
Making society pay for room and board of those that have committed a crime against it is inhumane. At the bare minimum, criminals should be required (not forced) to work, as is the case in some small number of states. In addition, criminals should be expected to make some restitution to society above and beyond this.
Criminals are not the victims, by definition. Society should stop treating them like victims, especially at the expense of actual innocent people.
"More than 76 percent of incarcerated workers report
that they are required to work or face additional
punishment such as solitary confinement, denial
of opportunities to reduce their sentence, and loss
of family visitation, or the inability to pay for basic
life necessities like bath soap. They have no right
to choose what type of work they do and are subject
to arbitrary, discriminatory, and punitive decisions
by the prison administrators who select their work
assignments."
You might claim that "incarcerated workers report" isn't solid evidence, but if you read the report you'll find that much of it was confirmed by responses to FOIA requests.
Being denied privileges if one does not do something is not the same as forcing someone to do something. I get many privileges for being employed, I'm not forced to be employed.
I also have to work to afford soap. That does not make me a slave.
If you're going to contend that solitary confinement is "denial of privileges" rather than a punishment designed to compel labor, then we just aren't going to agree and I don't see much point continuing. "Do this work, or I will take an action that is costly to me in order to worsen your life" is forced labor in any definition I can come up with.
You are not required to work one, specific job that can be changed at a moment's notice without your consent to afford soap. Almost any work one might do in the market economy is sufficient to pay for basic hygiene products for one person.
Solitary confinement is used in many other cases where people are not even convicted yet. If it was considered a right for the incarcerated to not be in solitary confinement, then it would be illegal to put someone in solitary confinement for refusing to work.
I can't have any job I want either, nobody can. Criminals are not entitled to free room and board just because they have injured society. Criminals are not the victims, they are the criminals. They should pay for room and board and make restitution to society.
If you're going to go to the "legal therefore moral" argument, you could've just started there. There are people who contend that the way some prisons are operated is actually illegal, but I haven't seen any of them here. This discussion is about whether requiring labor with threat of an explicit punishment -- not just "I will withhold something that is mine", but "I will go out of my way to make your life worse" -- is morally and practically comparable to (though clearly a lesser evil than) slavery. There are pretty good arguments that it is not (e.g. that chattel slavery would often extend to children of slaves, or include the right to capriciously murder the slave), but you haven't made them.
You can't have any job you want in the sense that you can't e.g. be President of the United States just because you want to. You likely (unless you happen to be in prison right now?) have a choice between at least two at any given time, though.
I suppose exactly zero of (to try to cover all political bases): Chelsea Manning, Julian Assange, the various January 6 convicts, the various people jailed after the George Floyd riots, or even those convicted of things they literally did not do are victims then. There are, always have been, and always will be "convicted criminals" that definitely don't deserve their fate -- though, to be clear, I believe some (not all) of the ones I mentioned do (and you'd probably be wrong if you guessed which were which). They are in the minority, but I'm not willing to deliberately hurt that minority just to also hurt the majority who arguably deserve it.
Bias does not change facts. There is no better time and place to be a criminal in the US than today. Criminals are being coddled, which is why most Democrat cities are so crime-ridden.
While I dislike your arguments, I have to agree with their correctness. Most of them.
Having had relatives had relatives in jail, they are not coddled. Yes, it is better than the past, but in all ways jail, let alone prison, is much worse than being on the outside.
I don't mean to suggest people are coddled in Prison. I don't particularly like law enforcement, or prison staff. I think the majority of them are crooked, either by direct action or by indirect action. However, prosecutors in many cities refuse to prosecute many classes of crime, and are elected on this basis [1].
In my view, this just contributes to what makes them crooked. They refuse to enforce the law as it is on the books. This is not justice.
One could argue they are elected not to prosecute every single crime committed but to use discretion in what they prosecute to maximize good given their limited resources.
If all they did was prosecute every crime to the fullest extent, they would not need to be elected.
1) In part because most cities of any size are run by democrats.
2) “over 100,000 population”. This is the factor that prevents these from mostly being “red”. I assume this is because smaller cities and large towns are both more likely than large cities to be run by Republicans, and also more likely to have bad economies, which (the latter) is a pretty good predictor of crime.
3) The second graph with per-capita gets us closer to correct, the first being “this is just a population heat map” levels of useless. Note all the “blue” cities in red states in the second one. I’ve lived in such a city. It was hopelessly hobbled by the state government—anything “blue” it tried to do was outlawed at the state level as soon as they tried to do it. You can’t really treat those as experiments in Democratic governance.
Republican state government is not preventing Democrat cities from enforcing the law in red states. My point is that criminals are too coddled, not that they are not coddled enough. Preventing democrat cities from coddling criminals even further does not somehow make them less coddled. The Democrat cities coddle criminals as much as they legally can.
The largest cities have the most crime, because they have the most people. And most large cities have Democratic mayors.
You could break it down per capita instead, which shows that urban area have the highest violent crime rates, and rural areas have the highest property crime rates.
I haven’t been able to find a comparison of cities with Democratic mayors vs cities with Republican mayors.
The source provided does break it down per capita, and when done so, the 10 most violent cities in the US, measured per capita, are either democrat (9) or independent (1) controlled.
There are far more cities with Dem mayors than Republican mayors, so comparing raw counts is pretty meaningless. (Similar to counting comparing total homicide instead of per capita.) There are 10 Republican mayors amongst the 50 largest cities, and furthermore, these are heavily concentrated at the low end.
It turns out the relationship between crime and population is non linear, and that nonlinearity is also true outside of the US and it's political context.
So, what you're seeing is bigger cities with higher per capita rates due to the underlying relationship between population density and crime. It also happens to be the case that in the US, urban areas strongly prefer Democratic mayors.
Quoting you: "There are far more cities with Dem mayors than Republican mayors, so comparing raw counts is pretty meaningless. (Similar to counting comparing total homicide instead of per capita.)"
Quoting me: "I did not compare raw counts, I compared per capita counts."
I did not learn anything I did not know before re-reading.
You're using raw counts /of cities/ in a top ten list, when the actual leadership of cities is heavily skewed towards Dem mayors. I point out that this is similar to comparing raw counts instead of per-capita.
Let v = high violence, d = dem mayor, r = republican mayor.
You seem to want to compare P(v|d) to P(v|r). We have little to no data for comparison because there are so few examples of cities with republican mayors. Those that exist are amongst the smaller American cities. This means you need to disentangle the effect of city size on violence rates from the effect of the mayor's party.
I repeat:
There are 10 Republican mayors amongst the 50 largest cities, and furthermore, these are heavily concentrated at the low end.
It turns out the relationship between crime and population is non linear, and that nonlinearity is also true outside of the US and it's political context.
So, what you're seeing is bigger cities with higher per capita rates due to the underlying relationship between population density and crime. It also happens to be the case that in the US, urban areas strongly prefer Democratic mayors.
They are not getting enslaved. The temporary loss of liberties for conviction and sentencing happens in every single western country. This is not slavery.
No US prisoner is forced to work in any meaningful sense of the word "forced". They can just not work, they won't get beaten for it, they won't get killed for it. In some states, they are required to work. It's not the same as being forced to work. Being a criminal does not entitled them to free room and board on the taxpayer dime, in fact in a just world, society would be entitled to restitution from the criminal.
There is no better time and place to be a criminal in the US than today. Criminals are being coddled, which is why most Democrat cities are so crime-ridden.
Corporal punishment in prisons is not legal in the US[1][2][3].
Prolonged solitary confinement is being used for people who do not refuse to work as well, even for people who have not been convicted[1]. You may think it's inhumane, but it not slavery.
They may lose privileges and good time credits, and it may impact their parole. They do not lose rights as one may happen when one is convicted of a crime.
> They do not lose rights as one may happen when one is convicted of a crime.
So you get more time in prison, losing all rights, which is what happens when you're convicted of a crime? Just because you don't want there to be legal slavery doesn't mean there isn't legal slavery.
> The study examined 62 private prisons contracts in 21 states. It found that the majority of these contracts guarantee that the state will supply enough prisoners to keep between 80 and 100 percent of the private prisons’ beds filled.
The US does not falsely convict and jail innocent people en masse as policy. If anything. A much bigger problem is that the US does not convict and jail criminals en masse as policy.
There is no better time and place to be a criminal in the US than today. Criminals are being coddled, which is why most Democrat cities are so crime-ridden.
> Official misconduct contributed to the false convictions of 54% of defendants who were later exonerated. In general, the rate of misconduct is higher in more severe crimes.
> We tried to determine whether official misconduct that contributes to false convictions has become more or less frequent over the past 15 to 20 years. For most types of misconduct, we won’t know for years to come, but we already see strong evidence that a few kinds of misconduct have become less common: violence and other misconduct in interrogations; abusive questioning of children in child sex abuse cases; and fraud in presenting forensic evidence. On the other hand, the number of federal white-collar exonerations with misconduct by prosecutors has been increasing.
> According to the cybernetician, the purpose of a system is what it does. This is a basic dictum. It stands for bald fact, which makes a better starting point in seeking understanding than the familiar attributions of good intention, prejudices about expectations, moral judgment, or sheer ignorance of circumstances.
— Stafford Beer (2001)
> It is better that ten guilty persons escape than that one innocent suffer.
— William Blackstone, Commentaries on the Laws of England book 4: Of Public Wrongs (1768)
That's true. (Commentaries on the Laws of England summarises a tradition older than the United States, but your point still holds.) Maybe falsely imprisoning innocents en-masse is okay, provided that (for example) the false imprisonment ratio is low enough and it could not easily be lowered further.
But it being okay isn't the same as it not happening. I'm not sure why you asserted that it doesn't happen, when it's a well-known problem. See, for example, https://en.wikipedia.org/wiki/Kids_for_cash_scandal (2003–2008), though it's rarely that blatant.
Roman slaves got paid. In imperial Russia the slaves were paid.
American slavery institution is not representative of how this worked for thousands of years. In many societies you couldn’t just randomly kill a slave.
Please try to intelligently elaborate how it’s slavery when all of the defining characteristics of slavery are removed (involuntary work, physical violence for disobeying, inability to change employers, etc).
What do you think it meant to “buy a slave’s freedom”?
Are you claiming Roman slaves were not slaves and both the Romans that lived thousands of years ago and modern historians are wrong to call them slaves?
> You might think these things are only a pain for people like me who work in the tech and creative space. You’d be wrong. Employees also locked into their jobs include hairdressers, janitors, security guards, and fast-food workers. Who knew that the ability to say, “Would you like fries with that?” was proprietary? Not me.
The Judge says they can't enforce their new ban.
But does that stop them from trying to stop non-competes using prior law? For example the Sherman Act can cover non-competes. If the FTC started suing hair salons and fast food restaurants under that it might cause enough problems for those businesses that they'd stop using such agreements.
Most non competes are signed on your first day of work after you quit your previous job (under duress) and provide no consideration. Basic contract law should have thrown these out long ago.
In my experience, "non competes" form part of an employment contract, as a clause of the employment contract, and are not an entirely separate contract.
In contract law, the requirement for consideration applies to the contract as a whole, not to each individual clause. An employment contract, as a whole, definitionally provides consideration.
Can you give some examples where "non competes" are signed independently of your employment contracts without consideration? The quoted article refers to them as clauses, and the FTC rule in question is also titled the "Non-Compete Clause Rule" [1].
I've never had a real employment contract. Most Americans haven't. It's typically at will employment.
Every job I've had is as I've described. First day you go into HR to do your W2, set up insurance, 401K, etc and then you are also handed a surprise non complete. Don't want to sign it? No job.
If it was part of the employment contract you'd be aware of it during the negotiations. Since you haven't even seen the paperwork until this point, how could you have proper consideration for it rolled up in the employment agreement? Why is it even a separate document if that is the case?
In this case, it sounds like the non-compete is a clause to an implied contract then.
And every single employment contract I have signed had a non-compete that was not mentioned during negotiation, and in every single case the non-competes could not be negotiated away either — that does not mean they have no consideration.
> Since you haven't even seen the paperwork until this point, how could you have proper consideration for it rolled up in the employment agreement?
You are using the word consideration in two different senses (i.e. equivocating in the technical sense) [1][2]. A contract must have consideration, but the consideration it requires is consideration in the sense of "A payment or other recompense for something done" not "The thought process of considering, of taking multiple or specified factors into account (with of being the main corresponding adposition)".
If you want consideration in the second sense here, just refuse to sign the clause until you have sufficiently considered it. But if you do sign it, it does not mean it's without consideration in the first sense here.
Implied contracts aren't worth the paper they aren't written on. That won't hold up anywhere.
> refuse to sign the clause until you have sufficiently considered
Sure, but you just told me to quit my job and sent me an offer letter with your terms and "forgot" that not working for X years unpaid after I leave is one of them. In fact you probably did the opposite, you called it "at will" when it clearly isn't, for me at least.
Perhaps you don't sign and sue for promissory estoppel? Wouldn't it be simpler for employers to just define this sort of thing at the start instead of being sneaky about it?
They aren't implied. They are physical documents presented and signed after the 'employment contract' has already began to be executed.
Hell that 'employment contract' is at will 99% of the time, any party can end it at point for any reason, but that doesn't apply to the implied non-compete portion signed after employment? What?
If you sign a non-compete clause in the context of employment, even at will employment, the continued employment can serve as consideration for the clause. It's not without consideration.
If you sign a non-compete clause outside the context of employment, and there is no consideration for it, i.e. no continued employment or any other consideration, it's without consideration.
Good luck with the novel legal theories in court, but I don't think courts are too fond of equivocation.
Either way: Honest people would tell you the terms and conditions like that before asking about your price. Even if it's legal, its dishonest. "Whoops we accidently made as much duress as possible for you to sign our contract that we are just revealing now."
1) Recency bias, you probably remember more of these cases from Texas right now because that's the subject of this article.
2) The district and appelate courts in the US vary widely in their judicial ideologies, and usually align closely with their local political leanings. In today's political landscape with a democratic administration, it's unsurprising that courts in conservative districts frequently rule against federal agencies. Notably this judge was appointed by Trump, and is citing recent rulings and legal theory from the current radically conservative Supreme Court. Judges in liberal areas are still under some obligation to take precedent into account, so the case may have gone the same way even with a liberal judge, now that the Chevron Doctrine is more or less dead due to the Supreme Court. But liberal judges still often diverge from the legal theory conservative supreme court justices are using today.
3) Judge shopping, ( https://en.wikipedia.org/wiki/Forum_shopping#United_States ) the case was intentionally filed in a district that is known for conservative judges that are friendly to corporations, were appointed by Trump, and align closely to the supreme court's legal ideology. The Northern District of Texas were this case was decided is a common choice for such shopping, especially because they explicitly ignore policy guidelines (that are sadly nonbinding) to prevent judge shopping.
Let's be honest, though, for pro-business rulings #3 is the main reason. Businesses know that filing in that District is guaranteed to get them a judge that almost always sides with them.
> Alan D Albright[1][a] (born November 24, 1959)[2] is a United States district judge of the United States District Court for the Western District of Texas. He was formerly a United States magistrate judge of the same court. Albright oversees a significant portion of patent litigation within the United States. In 2021, the United States Court of Appeals for the Federal Circuit repeatedly rebuked him in a string of opinions for failing to transfer cases to more apt jurisdictions. A quarter of all patent lawsuits in the US were once heard by Albright, who has been widely criticized for ignoring binding case law. However, following a docket-stripping order issued by Chief Judge Orlando Garcia, Albright's patent docket has declined precipitously
This article is mostly lifted from a linked articles and is a dupe of yet another article and somehow none of the three saw fit to link to the ruling. Mostly all three are caterwauling about impact without addressing the ruling on its merits which combined with the reluctance to link to the ruling makes me wonder if maybe the legal analysis in it is more compelling than they’d like to admit.
Non-competes are most often an abuse of power. There's no legal basis for their existence without due compensation. The FTC change made proper allowances for executives and IP. I think the Texas court ruling is deeply and perhaps criminally flawed.
Lol, as far as I know, in my country non-compete agreements, without a serious amount of money involved to pay the worker until the agreement hold, are kind of illegal. Actually, it may be bluntly illegal for good now.
Congress grants authority for rule making by various legislation. The question of if they have the authority is on the interpretation that legislation.
Too much may be pushed into executive orders and rule making but the highly politicized court of the northern district of Texas is also not the answer.
The federal judiciary is also appointed by the executive and is increasingly partisan.
The answer is the court rules that the FTC overstepped it's power. It's now back to congress to grant that power if that's truly what they wanted, or hell they could have written a better law in the past. Sloppy legislation should not be encouraged.
You may not like the executive action rollercoaster, but it’s the one you’re on.
Republicans would torpedo anything like this in Congress unless Democrats can get 60 non-centrist senators (which is not gonna happen). So you can either get this when Democrats are in the white house, or you can just not get it at all.
Or we nuke the authority of the executive branch to write laws of any sort and force Congress to fix itself. Republicans play exactly the same "we can only get anything done through the presidency" game with their base and would be just as hampered at delivering anything useful if the executive were stripped of its accumulated powers.
The growing administrative state created Congressional deadlock, not the other way around—it changed the game and made the optimal move for either party be to hang everything on the presidency, killing compromise. The only path towards breaking the stalemate in Congress is eliminating the ability of either party to deliver anything through the side channels they found in the executive.
Clearly, according to the courts and several recent actions including at the Supreme Court, it is not the roller coaster we're on, any longer at least.
And I welcome it.
The fact that Congress is dysfunctional is a different topic, we shouldn't applaud paving the way to dictatorship because we don't like Congress neglecting its duty.
Republicans run on the platform of small government, but then what that basically means is deficient spend, line their own pockets, and then let democrats fix the issues, then blame the issues on the democrats. They have demonstrated this twice, and now are the laughing stock of the entire world as the big orange baby is leading the party off a cliff.
Democrats are literally the only option left. They may not be optimal, but at least they actually do stuff that matters.
You are inculcated and yet provide no hard evidence to convince me. Invert your position and consider, empathetically, that I feel just as strongly that Trump is the clear only option for this election cycle. What do you immediately feel when trying on that empathetic lens? Disgust? Anger? Emotion?
Or can you provide an unbiased, data-driven set of metrics from which you would base a decision?
If you don’t want the government to prevent noncompetes, then they’re going to happen. Workers lack the collective bargaining abilities to force employers to do away with them.
That's certainly all true, but there's a good argument that it's really the responsibility of Congress and/or the state legislatures to write laws banning non-competes. Having a federal agency do it is basically an ugly hack.
Of course, the counter-argument is that Congress and the state legislatures are too broken to write these laws as they should, because they don't really work for the people, but rather the corporations (except, surprisingly, in California where non-competes are non-enforceable), and that this ugly hack is therefore necessary and the only workable solution.
But if Congress is too broken to pass a common-sense law like this, what does this tell us about the long-term viability of the US as a single political entity?
> But if Congress is too broken to pass a common-sense law like this, what does this tell us about the long-term viability of the US as a single political entity?
We’re already there, we’ve been there for over a decade at this point. It says nothing good about the future of the US, but nothing’s going to change, so in the immediate moment we need to play the hand we’re dealt.
That statement doesn't really have a lot of credibility when "States' Rights" is what Republicans turn to only after they fail to legislate something at a federal level.
So you are fine with a court deciding it then? A judge that has no expertise in the subject area but in the matter of law? That was appointed by some party in power in the past?
Technically the president who handles a lot of agency appointments and guidance is elected somewhat more democratically than the senate, who confirms federal judges.
At least the electoral college roughly takes state population into account. The senate just assigns two senators to states with 580,000 people and then does the exact same for states with 38 million people.
Senators were designed as senior statesmen representing the interest of State Governments, and as a check against the popularly-elected Representatives in the House so that the smaller states could have a voice.
That's why general public couldn't even vote for senators until the 17th amendment in 1913. I wonder from time to time the ramifications of turning Senators into basically super-representatives.
I think it's always good to keep in mind that the Founders and Framers really did consider the individual States as semi-autonomous entities bound together in a tight FEDERATION that would cooperate on interstate commerce, mutual defense, and foreign diplomacy.
And so, Wyoming, Maine and Rhode Island get just as many senators as New York, Texas, and California because they are just as important to this Union as any other state.
Edit: Apparently (but not surprisingly) there is some partisanship surrounding this issue and I want to make clear that 1) I came to this thought via just some first-principles thinking 2) I do sympathize with the motivations behind the 17th and the challenges of reverting to pre-17th (in the same way we really can't go back to pre-12th Amendment style POTUS elections).
You said that each state has equal importance to the union, right? So what would you say if California had a state vote and decided to split into 5 states. There would be states for the LA, Bay Area, San Diego, Sacramento, and a 5th state for all the other areas. California would gain 8 new senators just by dividing its boundaries, and it would probably all be the same political party.
Or the same for Wyoming. Why not Wyoming just declare that it is now 4 states and quadruple its representation?
See the problem here? This assignment of senators is arbitrary and has nothing to do with representing states. States aren’t people.
This system isn’t really designed with the incentives or guard rails to do what you say it does. There’s nothing that requires a senator to be this image of a dignified senior statesperson that represents the interests of the state in the way that the founders imagined.
Case in point: JD Vance became a senator with zero public service experience. He has no longstanding relationship with state congresspeople in Ohio.
The founders made the constitution in a time before our advanced financial and media landscape. It was also conceived at a time when states were barely even agreeing to be united into a single country. It was also made at a time before mass urbanization.
With all this context in mind I can’t really see what the Senate’s purpose is besides disenfranchising voters in larger states. Congress isn’t really there to make sure that smaller states are satisfied, it’s there to pass federal laws in areas where the federal government has authority over states.
It’s not even legally allowed for a state to secede. So why are the needs of arbitrary state boundaries more important than those of the people?
I would argue that the founders might have been wrong to decide that we need a check on the desires of voters. They were clearly wrong on the electoral college, which should just go away entirely or at least change to a more granular system like the states that split their electoral votes.
I would say that the best thing we could do is expand the House of Representatives to around 2,000 representatives and then eliminate the senate entirely. Or, perhaps, turn the senate into a subcommittee of more tenured representatives elected by members of the House of Representatives.
>Or the same for Wyoming. Why not Wyoming just declare that it is now 4 states and quadruple its representation?
So there's nothing stopping anyone from trying this, but admission into the Union requires the other States in the Union + POTUS to agree with you. And, I'd imagine if a coalition of states finds California splitting into 5 parts to be disadvantageous to the balance of power within the Union, they'd block it immediately.
We can see historical examples of this: the slow-rolling crisis of the mid 19th century of the expansion of states in the western territories. We can see modern examples of this: D.C and Puerto Rico not being granted statehood.
>There’s nothing that requires a senator to be this image of a dignified senior statesperson that represents the interests of the state in the way that the founders imagined.
I agree with you on this, and also, historically this was proven to be the case and why the 17th was ratified. And, I guess in a lot of ways, a popular election of the senator by the state's populace is just "state government appoints the senator" without the extra steps in-between.
But if we take this "popular election is just the old system without the extra steps" part, then:
>With all this context in mind I can’t really see what the Senate’s purpose is besides disenfranchising voters in larger states.
Couldn't it be said that it franchises [sic?] the popular vote of smaller states to protect them against larger states passing laws that directly benefit them?
>Congress isn’t really there to make sure that smaller states are satisfied, it’s there to pass federal laws in areas where the federal government has authority over states.
Yes, but how do we ensure that larger states don't start passing laws that directly take advantage of the smaller ones?
>So why are the needs of arbitrary state boundaries more important than those of the people?
>I would argue that the founders might have been wrong to decide that we need a check on the desires of voters. They were clearly wrong on the electoral college, which should just go away entirely or at least change to a more granular system like the states that split their electoral votes.
So this, I think, is purely a matter of political philosophy. The founders were seriously afraid of mob rule. They also saw statehood and state-identity as some sort of pseudo-ethnic identity. Are the state boundaries maybe a bit arbitrary? Perhaps in the very squarish mid-western states but the original 13 saw their state boundaries as being steeped in history and tradition. I think there is something else to be said about these identities becoming fluid at the borders of the states, central power in concentrated economic/population zones radiating outwards and coinciding with the strength of state-ethnic identity, etc. etc. More Holy Roman Empire than United Kingdom.
So I think perhaps this increasing call for national popular votes of the president, abolishment of the Senate, questioning statehood in general points to an increasing shift away from the idea that we're citizens of the USA as a function of being a "Virginian" or a "New Yorker" or a "Californian" (a slow, long rolling processes started in 1861) Mixed with increasing frustrations about larger states and metro areas feeling they're not properly represented.
And, forgive me, but I don't know if this sentiment is entirely correct. So I reserve my skepticism for switching to unicameral systems, to nationally elected POTUSes, to turning States into Provinces. Until I am convinced otherwise.
I think the fundamental question we are debating is this: at what threshold does protecting minority voices and interests look more like minority rule denying the majority opinion than the needs of minority interests being protected? At what threshold does the desire to stop mob rule become the silencing of the common person?
And really, there's a good argument that’s where we are at today. The minority opinion controls a lot of national policy.
For example, the Supreme Court confirmed by the small state-biased senate and a president who lost the popular vote overturned Roe v Wade. Meanwhile, 57% of Americans disagree with the ruling and that number is 62% among women (Pew Research).
Congress has an extremely poor record of passing laws that people want and instead pass laws that their skewed constituency supports. The majority of Americans support free-tuition college, universal healthcare, and better gun control, but Congress has made little progress on those issues.
The founders weren’t abolishing monarchy to hand over power to the common person. The founders envisioned a republic where male property owners were allowed to vote and even then it was quite indirect. The founders owned slaves. They replaced monarchy with aristocracy, which isn’t all that helpful to the common person. That legacy lives on in the design of their system.
The US only got better after making a whole lot of changes: abolishing slavery, guaranteeing civil rights, giving women the right to vote, etc. The USA arguably wasn’t even something that could be considered a democracy until the second half of the 20th century. And it still has a long way to go.
If we truly believe that one person is equal to one person, how can we justify giving people different levels of voices based solely on where they live? Just because we don't want urban areas to have the most power? I cna't figure out why we don't we want that, or why we don't want that more than we don't want rural voices to overpower urban ones. By demographic reality those urban areas have the most people and if those people aren't being heard that is already a failure.
An entire district larger than the state of Wyoming has no voting representatives in the Senate.
I guess here is an even more fundamental question: What is the purpose of the Federal Government, and what is the purpose of our representation within that government?
I think answers to those questions illuminate quite clearly how you will end up feeling about urban vs rural, majority rule vs minority protection, Senators, SCOTUS, etc. etc.
>those urban areas have the most people and if those people aren't being heard that is already a failure.
But they are heard? Democrats (largely associated with urban areas) control 49% of the House of Representatives. Until 2 years ago they had ~51%. And they've had a couple of super majorities. And each Representative represents the same number of people.
But voters aren't fungible. Voters' interests aren't fungible. It would be preposterous for a resident of Chicago to show up to a school board meeting in Seattle and make any sort of demands.
>how can we justify giving people different levels of voices based solely on where they live?
The reality is that our environment, upbringing, and experiences lead to a particular mix of interests and those interests tend to get geographically clustered. Those interests also have real, economic ramifications to everyone's daily lives. We don't even all speak the same kind of English!
Look, I'm not saying the system is perfect, but I still hold a lot of skepticism towards drastic changes to a system that can wield immense power and control over the world.
And for what it's worth, I could be very wrong in my views. The beauty of a democracy is that with enough votes and political action, those who think I am wrong can move to shape the USA into their vision if they win enough power in Government. And the great strength of the USA is that 1) I can disagree with the end result freely and 2) if I find it so important to my daily life, the well-being of my posterity, and the common-good of all, I can take action to find like minded individuals to convince people of our view and make real political outcomes. All in a peaceful manner! All protected by the First Amendment! (for it takes freedoms of speech, press, assembly and religion to accomplish these two things).
I think we have a pretty good thing going here if the above two remain true in our government.
US Constitutional Law and the very specific field it has created. So, in this case, Articles I, II, and III of the US Constitution + 27 amendments.
Which, I concede doesn't fall under a narrow-definition of First Principles thinking but I think the term has been meme'd enough to allow for some play here.
Under the rule-of-law, after such a ruling, you can sue the state for damages. If you can show damages you will be made whole, i.e. indemnified.
I, for one, am looking forward to companies showing how and how much they were damaged by the ban of non-compete clauses in working contracts. Should be some interesting numbers.
>If you can show damages you will be made whole, i.e. indemnified.
You can be made whole to the best extent humanly possible.
Which is to say, no. No matter how much money you might win, you can't be made whole for the time and human capital wasted on fending off Executive Branch abuse.
The ideal timeline is to stop the abuse before it has taken root, bloomed, and spread its hay fever all over the place.
Yes. I prefer rule of law to rule of whatever-the-party-that-currently-controls-the-presidency-thinks-is-best.
Laws are more durable and can be counted on. Rule by expert sounds appealing until you realize that in the US that comes with an expiration date that is never further than 4 years out, with the results of a single nationwide election potentially triggering a complete rewrite of any and all administrative rules. You can't build anything durable on a system that fragile.
> Yes. I prefer rule of law to rule of whatever-the-party-that-currently-controls-the-presidency-thinks-is-best.
It’s not much worse than the decision of whatever-party-got-to-appoint-a-judge-at-the-right-time. Seriously, considering the constant stream of bonkers ideological decision in various courts, including federal, who decide to ignore both law and precedent when it suits them, your faith seems to be misplaced. Rule of law works when you have a working judiciary. Unfortunately, that branch of the American government is not really in a much better state than the two others.
> Laws are more durable and can be counted on.
Common law is a gentleman’s agreement that courts will follow precedent. It broke down recently in several spectacular occasions, at which point no, laws cannot be counted on.
> Rule by expert sounds appealing until you realize that in the US that comes with an expiration date that is never further than 4 years out, with the results of a single nationwide election potentially triggering a complete rewrite of any and all administrative rules. You can't build anything durable on a system that fragile.
That’s an argument for an independent civil service, not for the end of agencies. A change in government should not mean a collapse of the administrative state or wide swings on technical policies. It’s not magic, both the UK and the US (among many others, but these two are easier to discuss from English sources) used to do it.
You literally just attacked the regulatory agency for going with "whatever-the-party-that-currently-controls-the-presidency-thinks-is-best."
How about evaluating the agency's argument instead of automatically assuming a political appointee from the most politically divisive administration in an era where precedent is being thrown away at record pace on partisan grounds is "correct on the question of law"? "As far as you can tell" I guess.
Sorry, I seem to have miscommunicated: I'm not commenting on the rule, I actually quite like it in principle. I'm commenting on the manner in which the rules are created and their fragility.
Laws passed by Congress tend to stick around and can be counted on. I want a law banning noncompetes, not a temporary administrative rule that gets added to the pile of things that could get completely upended with each and every presidential election.
I agree but I'd rather have either one than nothing.
I'd in general rather have agencies invent rules in ways that help Americans instead of judges inventing interpretations in ways that help corporations.
The courts should have the power to issue injunctions against an agency's policies but the judge shopping should not be allowed.
I mean, insofar as it wasn't attacking a specific person, yes. But it's a generalized attack on an institution rather than that institution's legal argument. Would you accept ad cortem?
Reminder to everyone else, the President nominates agency heads, and the Senate confirms them
There are some agencies I don’t want democrats running, and some agencies I don’t want republicans running. There are many of us that vote based on some agency terms ending, weighed against other things.
Not at all! I'd prefer that the power of the executive be stripped down to the point where neither party can accomplish any of their campaign promises without passing laws in Congress.
Both parties have pivoted their entire strategy towards making presidential campaign promises, delivering them as temporary administrative rules (i.e. this from the Democrats, immigration law from the Republicans), and then frantically rallying their base to defend those rules against the possibility that they get upended in the next presidential election. It's chaos.
Neuter the executive branch and the game is up: no promises get delivered on and therefore no world-ending stakes can be played up in the presidential election cycle. My hope would be that with the game ended Congress goes back to actually governing and compromising to deliver something tangible and durable to their bases.
This is why I think the US's Presidential system is fatally flawed, and should be abolished in favor of a parliamentary system, similar to those in the two countries that the US helped set up such systems: Germany and Japan.
Japan is literally a 1.5 party state (LDP with Komei Party latching on as yes men), and the last time the Japanese electorate decided to give the minority JDP a shot it resulted in the worst manmade nuclear disaster in post-war history and the JDP collapsing into two different and irrelevant parties (CDP and DPFP).
And today the LDP party leader election stems from a leaderless leader (Kishida) failing to both lead his country (stagnant economy and policies) and manage his party (politicians from mere Parliament members to cabinet ministers engaging in literal tax evasion).
All the while the Japanese electorate's sentiment is "o rly" because nobody couldn't care less who becomes the new LDP leader and thus next Japanese Prime Minister because nothing will really change. I haven't met a single Japanese voter who understands how Parliament members are elected, either.
I frankly much prefer the American shithouse, at least it's fun and even makes sense (yes, including the Electoral College) once you actually study it.
I don't see any government shutdowns in Japan. In fact, life here is generally quite peaceful and stress-free, unlike the hell that is life in the US these days.
>(Kishida) failing to both lead his country (stagnant economy and policies)
Kishida has been fine; you can't change a stagnant economy in a few years, and a PM's power is limited.
>politicians from mere Parliament members to cabinet ministers engaging in literal tax evasion).
Tax evasion by parliament members isn't great, but US congresspeople aren't any better: just look at Bob Menendez. No place has perfect politicians.
>I haven't met a single Japanese voter who understands how Parliament members are elected, either.
So what? Most Americans have no clue how their own government works either.
Japanese could certainly stand to improve their civics knowledge and become a little more politically active, but it's nothing like the shitshow that is US politics these days. It was actually nice seeing how the assassination of former PM Abe actually resulted in real positive change, with the government cracking down on Moonie cult affiliation by many politicians; that would never happen in America.
Considering we've gone through like half a dozen shut downs if not more and the sky didn't come crashing down, I say shut 'er down more. We'll all save money and a lot of misery.
>In fact, life here is generally quite peaceful and stress-free,
Quite a lot of Japanese hate how peaceful life is in Japan because the flipside is there's nothing to look forward to.
I'm sure there's a healthy serving of "grass greener on other side" there, but I don't disagree with the assessment. Low risk means low return.
>Kishida has been fine
Kishida is decidedly not fine, he is enjoying utterly abysmal approval ratings and he was more or less forced out of running for the party leadership and Prime Ministry this party election cycle because of how inept he was.
He speaks a lot of fancy words, but he didn't actually do much of anything as a leader. Kind of like Obama in that sense.
>Tax evasion by parliament members isn't great, but US congresspeople aren't any better: just look at Bob Menendez. No place has perfect politicians.
All of them basically got slapped with temporary suspensions from political activity from their party. Fines? Nope. Prison time? Nope. Amending the law to crack down on this behaviour? Pedantically yes, nothing changed in practice.
Incidentally, the LDP is projected to lose seats in the next general election and maybe even lose majority and thus the government because of how utterly worthless they and the Japanese political scene at-large is.
>So what? Most Americans have no clue how their own government works either.
The difference is Japanese pride themselves on being educated, and most of them can't tell you how Parliament is elected because of how innane it is.
If you don't believe me, you don't have to because the numbers speak for themselves: Japanese voter turnouts have been utterly abysmal, and this is after they reduced voting age from 20 (age of maturity) to 18 and campaigned to increase teaching civics in schools. The high school senior kids couldn't care less, let alone the adults, because they knew voting is a waste of time.
>It was actually nice seeing how the assassination of former PM Abe actually resulted in real positive change
The fact that it took violence of the highest order to effect the bare minimum of change (those cultliticians dragged their feet in disavowing, cult monies are monies) is not a good thing for democracy.
...a federal judge is a rule by expert. That's the whole point: you have to pass the bar and are insulated from feedback for life. The alternative, bureaucratic rule, is subject to democratic feedback: if people don't like it, they can vote to change it.
Rule by expert sounds good until you realize that by insulating invasive systems from election cycles, you end up with a permanent opposition and a disillusioned populace who can't trace a causal path from their vote to meaningful change in their live.
> if people don't like it, they can vote to change it.
Correction: if the people don't like the entire collection of administrative rules, foreign policy, and general vibes put forward by a single person (the President) they can vote to change that single person. They don't get a say on the rules themselves.
Laws passed case by case by a diverse governing body elected to represent smaller groups of people are more democratic than laws penned by bureaucrats who are accountable to a single person whose election hinges on the marginal vote tallies in a half dozen states.
IMO the administrative state is a unique little corner of meritocracy in a political system that is full of bad incentives.
Congresspeople use donor money to get elected and are incentivized to listen non-constituents with the biggest pocketbooks.
The president is elected by the people in similar big money elections with primaries controlled by the political party apparatus.
The judicial branch is appointed by the rest of that system, which is not surprising since they’re the ones that made dark money campaign contributions illegal via the citizens united ruling.
The administrative state is the only place where people actually get into their position on their merit and suitability for the job alone. Everyone below a certain level isn’t a political appointee, they’re hired off a job board based on their accomplishments and proficiencies like everyone else. There’s no donor money involved, the only reward for your service is a stable salary.
I know someone who did a relatively high profile job in one of the administrative departments. They didn’t know anyone. They just applied online, interviewed, background check, etc - just like a regular job.
Their appointment was based on their abilities instead of who they knew, no palm greasing involved.
If the task at hand is to through a list 125 possible additives to baby food and ban the harmful ones, I would rather trust administrative state than congressmen, at least they aren’t going to be sellouts. Much of the job is boring, not glorious and not that complicated.
Also, $800 million is not an impressive amount of money .Compare to cost of political mistakes
The problem is there is a lack of compromise in the legislature so each side wants quick fixes. Government is slow, so the executive has responded to their voters by trying to assert more power, often a layer removed via regulatory agencies.
I would like to see Congress pass more laws, which requires compromise. You can look at the federal government over decades, things don't happen over months or a few years, things are slow. If the issue surfaces over a few voting cycles then some things will pass, often as riders on big must-pass bills, or giant omnibus bills like the Inflation Reduct Act which had all manner of things attached to it.
In general I don't want singular agencies making economy-wide changes, nor the executive to do things by fiat.
I agree with banning non-competes in principle but if you let such massive economic changes pass that way, then get prepared for all manner of things you disagree with passing the same way.
It's a coin flip if Trump gets re-elected and I guarantee the left will suddenly find the wisdom of executive limits on power if he gets in office.
> It's a coin flip if Trump gets re-elected and I guarantee the left will suddenly find the wisdom of executive limits on power if he gets in office
Actually, the left isn’t inconsistent in the way you are saying. They bemoaned Trump’s efforts to undermine the independence and meritocracy the administrative state. They don’t want anyone to turn the administrative state into an executive power center.
For example, the left complained when the trump admin tried to make it easier to fire civil servants and replace them with political appointees.
The left has an extremely consistent view of the administrative state. They want it to exist as a quasi-fourth branch where the president doesn’t have full authority to turn those agencies into an embodiment of their personal will.
The left views the administrative state as an additional check on certain areas where our three branches fall short on managing a complex array of the day to day operation of the country.
By “left” I do mean the neoliberal left, not “communists who don’t shower much” left, because that’s how far right we are these days. The Republican Party used to believe in the administrative state and still mostly does outside of MAGA-world.
> The left has an extremely consistent view of the administrative state. They want it to exist as a quasi-fourth branch where the president doesn’t have full authority to turn those agencies into an embodiment of their personal will.
Yes, and many people don't want the administrative state to exist as a quasi-fourth branch. As someone who now runs a business with multiple lines of business in heavily regulated areas, you basically have three problems.
First, what does the regulator think the law says.
Second, what administrative actions has a regulator occupying the position previously done.
Third, what does the law actually say.
The administrative state has very real issues between the first and second points. In particular, the ability for an executive to do things like "imply" greater investigative actions may be taken for engaging in certain lines of business effectively means that laws can be selectively reinterpreted to achieve political aims.
An obvious example of this is Operation Choke Point from the Obama presidency. To this day, it makes obtaining MSB bank accounts for handling things as simple as payroll quite difficult. The administrative state is a very real issue for a nation governed by laws.
Certainly it’s not a system without flaws, but I think it beats congress in specific situations. Congress is where corporations literally write the regulations in a system of unlimited legal bribery and insider trading.
Operation Choke Point was an example of a failure but it’s surrounded many successes.
You’re a business owner so you have a certain perspective. My perspective as a consumer is that consumer protection agencies in the administrative state are the only entities that actually seem to make tangible enforcement efforts to protect me from people like you (or at least, much more powerful people like you - people like Mark Zuckerberg).
The FTC is the one that sues businesses like Ticketmaster for antitrust violations. The FBI is the one that catches my politicians breaking corruption laws. Meanwhile, the judicial branch is the one that took away my right to reproductive healthcare and expanded the criminal immunity rights of the president.
> Certainly it’s not a system without flaws, but I think it beats congress in specific situations. Congress is where corporations literally write the regulations in a system of unlimited legal bribery and insider trading.
> You’re a business owner so you have a certain perspective. My perspective as a consumer is that consumer protection agencies in the administrative state are the only entities that actually seem to make tangible enforcement efforts to protect me from people like you (or at least, much more powerful people like you - people like Mark Zuckerberg).
What enforcement efforts do you believe help you? Specifics are helpful.
> The FTC is the one that sues businesses like Ticketmaster for antitrust violations. The FBI is the one that catches my politicians breaking corruption laws. Meanwhile, the judicial branch is the one that took away my right to reproductive healthcare and expanded the criminal immunity rights of the president.
So first: the FTC under Lina Khan has not been performing well, and notably lost their suits. Second, it's the DOJ suing Ticketmaster, and the DOJ is actually won their Google suit, and seems to be poised to win against Ticketmaster and RealPage, which I'm rooting for.
And to address your points regarding the judicial branch: this is why laws are so important. People tend to treat elections as red vs blue, but the reality is that depending upon administrative agencies to legislate a contributing factor to what allows such tribalism to exist at all: a perception that progress on "issues", however minor, is permanent outside the bounds of congress can be made. To change the laws of the country, it must come from the seat of power: congress.
> if Trump gets re-elected [...] the left will suddenly find the wisdom of executive limits on power if he gets in office.
Whuh? I don't even—would the quarters in your pocket happen to depict George Washington with a pointed goatee?
On mine he's clean-shaven, from a timeline where "the left" has been the side consistently arguing for some very important limits on executive power, regardless of whether "their" candidate entered the office later, such as:
* Remember all those years of "Unitary Executive Theory" under the Bush administration, and how it was opposed and kept getting opposed?
* Everything about the Constitution-free-zone at Guantanamo, both its formation and failed executive attempts to dissolve it?
* The thing about the Emoluments clause, and whether Presidents can solicit and accept bribes?
* The thing about whether Presidents can self-pardon?
* The Supreme Court case about whether Presidents have blanket immunity in office which would allow them to order the assassination of their rivals?
Those should ring a tintinnabulation of bells, even before other less-legalistic notes, such as consistent belief that "President For Life" and praising foreign dictators for having dictatorial power are taboo.
If the law is vague, it is the duty of the judiciary to call that out and of the legislature to rewrite the law to be more precise. Vague laws are not an excuse for executive agencies to go ham, and I applaud the judiciary for reining in executive abuse of power.
That the specific consequence is enforcement of non-competes is ultimately irrelevant.
> If the law is vague, it is the duty of the judiciary to call that out and of the legislature to rewrite the law to be more precise.
Why? Nothing in our Constitution requires precise laws. Arguably (and since I'm making it, I'll say I'm in favor of this argument), the Constitution would preclude overly strict laws because the Executive is a co-equal branch of government.
> Vague laws are not an excuse for executive agencies to go ham, and I applaud the judiciary for reining in executive abuse of power.
Why not?
Congress has the authority to pass the laws it sees fit. Why is it suddenly a problem that Congress passed a law that says "the agency known as the Federal Trade Commission is established and the President, through a set of commissioners appointed by the President and confirmed by the Senate, shall ensure that the these list of goals are accomplished and shall establish such rules as the Commission deems appropriate."
We aren't a parliamentary system. The Congress has the power of the purse and the power to enact laws. The President has the power to implement the laws and to spend the money.
What's changed in recent years is the judiciary has come along and decided that a hundred years of Congress writing laws with bullet-point goals and the President acting under those laws is no longer relevant because "Congress didn't write enough words." That's not how textualism works.
>Why? Nothing in our Constitution requires precise laws.
Nothing in the Constitution requires vague laws either.
In the interests of curbing inevitable abuse of executive power, laws should only be as vague as absolutely required. In the interests of wider public comprehension, laws should be as precise as absolutely possible.
If a law is so vague that there are questions if the executive is overstepping its authority, it's the duty of the judiciary to stop that and of the legislature to rewrite the law more precisely.
>The Congress has the power of the purse and the power to enact laws. The President has the power to implement the laws and to spend the money.
And the Judicial Branch has the power to interpret the law, judge the Constitutionality of the law, and check the powers of the Legislature and the Executive.
The judiciary is doing its duty here. Put aside your personal biases and desires, because none of that matters here. Banning non-competes should be enacted by Congress and then executed by the White House withstanding challenges in the Courts.
The Executive Branch does not have the power to interpret the law.
Incidentally, the Executive Branch does not have the power to spend money either; it must spend money according exactly to budgets passed by Congress.
Yes I’m fine with the judiciary doing its job. I’m not fine with the executive exceeding their bounds. I’m also not fine with the extremely common regulatory capture of the bureaucrats that have “experts” fall in to cushy jobs if they use their expertise correctly.
If we remove all the double negatives it becomes "Judge keep FTC enforcing non-compete agreements" or "Judge stops FTC from enforcing compete agreements" neither of which make sense. The FTC doesn't enforce non-competes and there is no such thing as a "compete" agreement. So I'm not sure what you're suggesting the fix is here.
> Citing Overreach and Potential Harm to Businesses
Potential harm to business, oh no. Might as well repeal the 13th amendment while we are at it. Imagine how much more competitive American companies would be if they didn't have to pay for silly stuff like salaries.
There is a law, and it gives FTC broad authority to regulate unfair and deceptive practices in most "commerce", with carveouts for a few industries like airlines, packers and shippers, and finance/banking.
I assume you mean the FTC Act. Indeed it gives broad authority, but it isn’t unlimited.
FTC says “[..] it is an unfair method of competition—and therefore a violation of section 5” in their rule.
Indeed, the act gives them the ability to regulate unfair practices, but it’s not clear that this is unfair. Is it unfair if I get paid a good salary in return for not working for competitors? If they pay me for the years I can’t work after resigning, I would very much say no. If they don’t pay me for those years, I would say it could be seen as being unfair.
But the rule is a blanket ban on all noncompetes essentially, even for senior executives! (Unless I’m reading it wrong.)
I’m for banning noncompetes, but I don’t think you can reasonably argue that the FTC has this ability.
I do think they could ban the subset that are clearly unfair without any issues FWIW, and I do hope they switch to this direction.
Back to the chevron thing though, how many of you have ever gotten a parking ticket? Imagine two years after the fact some bureaucrat sent a letter informing you that because of your previous bad decisions you're unable to drive. Driving is a privilege, and the state will no longer grant that privilege to you.
Is that decision fair? You already went through the court system (or otherwise paid it off (implicitly, often explicitly, pleading guilty)), a judge took the time to judge your misdeeds, and you had some penalty applied, perhaps the max allowed by the law. Now though, some part of the executive branch wants to ignore any judicial action and assert their opinions.
Even before this ludicrous supreme court case, that was a thing that happened. A whole office in Minnesota is dedicated to extra-judicial traffic rulings above and beyond what the judge thought was reasonable.
I think it's wrong. Empower somebody like the FAA to make fast decisions when there are actually lives at stake, but everything else which could reasonably be judged one way or the other should go through somebody capable of judging it (maybe...a judge). Even FAA rulings probably ought to be vetted once they're less time sensitive.