Don’t be too sure about your assessment of American politics. We have one major political party who is at least half in the bag for Russia during a war of aggression.
Related: volunteering is a good way to get out of your own head. Putting your concerns to the side and helping the community can do wonders for your mental health (not to mention gain new friends with similar interests).
If the SCOTUS overturns the Chevron doctrine, then this rule and probably all of the FTC's authority is on thin ice until Congress passes an act that says something more substantial and significantly less vague that "unfair business practices".
Which would be great. These agencies and bureaus have grown to an enormous scope, completely without the consent of the governed. Doesn't sound like a republic to me.
It would be catastrophic, because Congress as it stands is utterly incapable of legislating. This is why the little stuff gets delegated to unilateral decision-making withing the executive branch: If making new rules was left to congress, they could never keep up. The world moves fast, congress moves slow.
Instead, they delegate powers to agencies that can make rules within some tight purview and pursuant to some defined purpose, and if they step out of line Congress is completely within their power to legislate their preferred stance into law.
It'll be interesting to see what happens. It does sound like this clearly falls under interstate commerce, so within the scope of Fed action. Is there something that makes you think otherwise? Beyond court composition, that is.
This was something passed by a Democratic administration. Therefore Republicans hate it, and since 2/3 of the Supreme Court is Republican, it's likely to be struck down.
The actual reasoning comes later. Something-something-Federalist-Papers-something. I'm sure they'll have no trouble digging up some Founding Father who said something that sounds like banning this, if you squint right.
I know a great many lawyers, of both parties, who have more respect for the Supreme Court than I do. They are more informed and better educated than I am, so you should take my cynicism with a grain of salt. But in my experience, treating the Supreme Court as a partisanship machine yields extremely accurate predictions.
I'm sure they'll have no trouble digging up some Founding Father who said something that sounds like banning this, if you squint right.
When this country was founded, a lot of its residents were slaves, so I'm sure Thomas and Alito will find plenty of fodder in that for their "originalist" stance denying workers rights.
I'm pretty sure the constitution was not written for slaves and no "originalist" stance would consider them. This is a silly "gotcha" that you just made up so you can get mad.
The 3/5th clause has been used by prior SCOTUSs to justify decisions, so it is not a gotcha. It's history...
On that note, Alito and Thomas had to use a pre-U.S. colonial law as their grounds to overturn Roe, so there is no limit to how far they will go to use "orignalism" to further their ideology.
Interstate commerce would allow congress to make such a law. However, the real question will be if congress gave or intended to give the FTC the authority to perform this action.
This supreme court has been very down on federal powers, so it really would not be surprising if they pulled "the major questions doctrine" to ultimately kill this off.
> Interstate commerce would allow congress to make such a law. However, the real question will be if congress gave or intended to give the FTC the authority to perform this action.
That's my take as well. There is almost certainly no doubt that the commerce clause (under current precedents since the 30s) gives Congress the authority to make legal rules like this one. If there be doubt here then it will be about a) the ability of Congress to delegate this power with b) such a vague and all-encompassing term as "unfair" to describe the practices that the FTC may regulate, and/or c) whether this particular rule violates the "major questions" doctrine found in the recent W. Virginia vs. EPA case.
Sure, but FTC was authorized by congress (FTC Act 1914) to "prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce" which seems pretty cut and dried? I may be missing something, this just feels pretty reasonable.
Yup, this is very much the key to why I think this will be killed.
This supreme court is very much on track to eliminate any authority federal agencies have that aren't explicitly written into law. Effectively destroying federal agencies ability to make rules.
> This supreme court is very much on track to eliminate any authority federal agencies have that aren't explicitly written into law. Effectively destroying federal agencies ability to make rules.
Very dramatic. Really, it's a reaction to Federal Agencies — unelected governmental representatives — unilaterally making their own rules out of the gray areas.
> it's a reaction to Federal Agencies — unelected governmental representatives — unilaterally making their own rules out of the gray areas.
Eliminating Chevron will trade "unelected governmental representatives" who work at Federal Agencies like the FTC with "unelected governmental representatives" who are work for Federal Agencies that are the US Courts. Progress?
> Eliminating Chevron will trade "unelected governmental representatives" who work at e.g. the FTC with "unelected governmental representatives" who are paid by the US Court system. Progress?
Where do you get that from?
Reversing Chevron will mean that Congress will have to work harder to get the regulations that it and the Executive want. If Congress were not disfunctional that would be a very good thing. And heck, reversing Chevron might well function to help Congress function more normally.
Congress won’t instantly have written laws to cover every regulation currently enforced by the federal government. Reasonably, it could take many years for those gaps to get filled. In the meanwhile, that means the courts are the key decision makers for large areas of government policy.
Did they? I wasn't there. But a reversal of Chevron doesn't necessarily mean that the courts get to do what they like. It may mean that the courts simply get to gut the bureaucratic state and kick the can to Congress -- that what's not forbidden by statute is allowed rather than that the courts act as regulators. There will be lower courts who will want to push their role as regulators, but the SCOTUS seems uninterested in playing that game given its "major questions" doctrine.
It would be very strange for the court to create the major questions doctrine then impanel itself as the ultimate regulator.
Someone has to fill in the multitude of gaps that exist between a law and its enforcement. Chevron moved much of that decision-making authority out of the court system into the executive branch.
Even a fully-functional representative body can't write laws that are explicit enough to cover every possibility. And the U.S. Congress is far from functional.
This is a key point that gets overlooked so often.
The Court accepts that governments outsource regulation to e.g. the private developers of building codes. Similarly, we don’t benefit from a Congress mired in details over the minutae managed by many areas of the federal government.
It's not though. The only people that can apply it are the supreme court and the only time they'll apply it is when precedence and the letter of the law goes against their own political ideologies. In short, it's lazy judicial activism.
It's anti-textualist, anti-originalist, anti-legal theory. It's a rule that the Supreme court has to invoke to achieve their objectives because they have no other avenue. The law was clear, the intent clear, and what congress desired was clear. Major questions should be solved by congress passing a revision to the law. The supreme court invoking it robs congress of their power because "we know better".
The reason it's such a bad rule is no lower court or litigant can really invoke it. It is only something the supreme court can use because it's undefined what qualifies as a "major question". Boiled down, it's "we don't like the law congress passed but we can't come up with a constitutional, textual, or historic reason why that law or it's application is invalid".
They would not use "major questions" if there were any other legal reasoning to go to.
> The only people that can apply it are the supreme court and the only time they'll apply it is when precedence and the letter of the law goes against their own political ideologies.
Not really. First, any inferior court can also apply the major questions doctrine -- the SCOTUS is merely the final arbiter, but presumably in many cases either there will be no case (because the Executive will preemptively go to Congress) or the Executive will accept a lower court's decision w/o having to go all the way to the SCOTUS. Second, the doctrine is pretty clear: if the impact of a regulation is politically very controversial and its impact on the economy or liberty is quite large by comparison to more mundane regulations, then it belongs to Congress.
Since "major questions" has no concrete definition, this means each minor point can/will be litigated until the court determines whether that individual point is a "major question."
Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.
> Quite arguably, Congress deemed the precipitating questions were not "major questions" and expressed as much by delegating to agencies.
That's a tremendous stretch because Congress can be very vague in its delegation of authority and decades later the agencies it delegated power to can interpret anything they want into that language and -because of the oft-repeated point about Congress' disfunction- the agencies can't be stopped.
> Since "major questions" has no concrete definition,
It's like obscenity: you know it when you see it. But it's simpler: if there's a controversy, there's a chance that the issue is a major powers issue, and then you have to look at whether the liberty/economic impact of the regulation is extreme enough that Congress must decide it.
I feel like this is a circular argument. On the one hand, Congress isn't allowed to delegate to the executive (agencies) because the agencies then act as delegates (by interpreting their mandates), so Congress must explicitly legislate everything.
But then on the other hand, Congress is dysfunctional and is incapable of legislating.
This feels like a recipe for the unelected branch (the courts) to run everything.
- Congress is allowed to delegate to the executive (agencies)
- but if an agency goes so far in beyond the original understanding of its delegation as to cause a major political controversy, then it has overstepped its mandate
For example, if Congress were to delegate to the EPA the power to ban internal combustion engines at the EPA's choice, then the EPA could absolutely do that. (Perhaps Congress couldn't if the court revisits Wickard, who knows, but if Congress could, then so could EPA). But if Congress were to pass a bill regarding clean air and decades later the EPA decides that a clean air mandate means the EPA can ban ICEs, then that would clearly be a major question (well, today it would be; maybe in another two decades it wouldn't be), the courts would not (today) allow such a regulation, and EPA would have to go ask Congress to ban ICEs or to delegate that authority to the EPA.
> This feels like a recipe for the unelected branch (the courts) to run everything.
If the courts were to decide that EPA can't ban ICEs under the Clean Air Act but that the courts can, that would be pretty insane. Perhaps before Chevron the courts sometimes did that sort of thing, but they wouldn't now if Chevron is reversed because this SCOTUS absolutely does not want that and will write an opinion that reflects that -- that much is clear. So I think this is hyperbole. Instead if Chevron is reversed, and together with W. Virginia vs. EPA, "major questions" will not be decided by the courts -- major questions would go undecided as long as Congress leaves them undecided, with the status quo preserved. That would not be a bad outcome!
Which is what Congress created them to do. And they are appointed, which the appointers are elected. In essence, they are elected, through the elected representatives which themselves are elected.
This is like saying that the US President is an unelected governmental representative. The population actually votes on a Representative for the Electoral College (EC). The Representatives in the EC then vote for President and Vice President. And yes, the EC Representatives are voted for because they say they will vote for a particular candidate (and as we figured out in 2012, many states have laws penalizing EC Representatives who don't vote how they committed to).
> This is like saying that the US President is an unelected governmental representative
No, that's not how that works, ironically because in the name — Electoral College — the President is, elected. Regardless by the populous or not.
Appointees are politically chosen, yes by a representative, but usually with major political leanings built into the rules they make, with little to no oversight.
The SCOTUS had its "federalism revolution" in the 90s, and it ended in the Raich case when Scalia decided that leaving drug policy to the States was too much.
Under current precedents all the State decriminalization of marijuana and other drugs that we've seen are all unconstitutional. It was the liberal justices + Scalia who made it so. Those State laws decriminalizing various drugs are being tolerated by the feds -- for now.
The federalism revolution and its opposite both cut both ways.
On the whole I would prefer that the court resume its federalist revolution, even though some results I wouldn't like.
You argument is that this case demonstrates there isn't any problem and that companies don't have actually have a significant power advantage? Not very convincing.
> Poaching all the staff away from a company is illegal in CA, it's called raiding. This change will not create laws out of thin air.
This is only true in the specific narrow situation where there is intent to harm the company. There is nothing wrong with the general case where you simply want to hire those workers.
I believe it will die more because of the originalist/textualism of the supreme court rather than considerations to which big businesses benefit (or are harmed by) this the most.
The question will ultimately arise "by what authority can the FTC make such a sweeping judgement" and it would not surprise me to hear the SC rule that this is an overstep of the authority they were given by the laws creating and maintaining the FTC.
Previously, the FTC could have argued that the chevron doctrine gives them this right. However, that is almost certainly about to be completely abolished this term.
The right of contract is almost certainly going to be more important to most members of the supreme court than any other considerations. That's my 2 cents.
"Unfair" is an awfully vague term. This rule might be a test of the recent "major questions" doctrine. The SCOTUS appears poised to reverse the Chevron doctrine, which would have given the FTC a great deal of cover here. There are a lot of reasons that the Court might reject this rule or even the FTC's authority in general.
Given that these rules are very similar to those in California, and California has a big enough economy to be a good representative sample, I don't see this being a real issue.
Otherwise, why aren't well capitalized competitors in California hiring up the best people at their competitors and crippling competition, as it were? We just don't see this happen on a large scale like this suggestions.
Now, that's my take on it at charitably. My honest opinion about it is simply: who cares. If you want people to stay, give them reasons to stay that aren't the legal equivalent of holding a gun to their head
>> Given that these rules are very similar to those in California...
CA has a corresponding law that prevents this. The last time I looked the FTC wasnt creating at NEW law to prevent the other side of this coin:
Rule 3: Workforce “Raids” Are Illegal in California
Technically, poaching employees is not illegal in California, but restrictions on workplace raids are mentioned in the legislation. In fact, state law prohibits companies from acting in bad faith to solicit a mass amount of employees from their competitors to intentionally hurt their business. This is called “raiding,” and when your competitor does it, you can file a tortious interference claim against them. Most of these cases require an employment contract to be successful in pursuit of damages.
I did say similar, not exactly. There may or may not be some effective law preventing this type of thing specifically, but in my mind, this is an edge case[0] and doesn't detract from my overall point, which is that eliminating non competes will overwhelming not end up with this being a plausible scenario.
[0]: that the California government anticipated and defined, to their credit
I doubt you are that valuable. Sure software developers are high priced, but without even knowing what company you work for I bet I can do your job at a competitor and after 3 years I'd be just as good - that is worst case when I have to learn a new programming language to expert level as well as the domain. There are only a few people who have special skills that it is even worth thinking about protected. Someone who hires you away from a competitor gains at most a couple months vs hiring someone with similar skill who doesn't work for a competitor (and thus doesn't have domain knowledge).
So employers end up competing with higher wages putting more money in the hands of employees, and talent goes to where it produces the most value, yeah that’s the point.
> It must be exhausting being married to a woman who wants to 'buck tradition'. Why didn't she buck tradition and just name your kids 'Aa, Aa', 'Aaa, Aaa', etc and be done with it? Heck why not go all the way and let them go nameless.
You managed to combine snarky reductio ad absurdum and a gratuitous attack on his wife in three sentences. Why wouldn't someone be annoyed by that?
I'm the first in the list, which has some advantages, but I do get tired of always being the first person to throw themselves on whatever grenade is lying around.
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