Hacker News Board Hacker News, browsed like a classic message board
Live data from Hacker News

FTC announces rule banning noncompetes

ftc.gov

Post reply on HN
Print view View original

331–340 of 530 posts

Re: FTC announces rule banning noncompetes

#331

Post by cryptonector »

mike_hearn wrote: post #175
Buttons840 wrote: post #127

Earlier quoted context omitted.

Ask your attorney friends if a farmer growing food on their own land to feed to their own animals is "interstate commerce", and ask them to explain that to you. What I'm referring to here is Wickard v Filburn in which the Supreme Court ruled that a farmer growing food on his own land to feed to his own animals was participating in "interstate commerce" and could thus be regulated by the federal government. This is a…

Is it the same people? It seems like the current Supreme Court is very much against decisions like the weird farmer one and likely to roll such things back.

During the Federalist Revolution period of the the 90s, before Scalia got spooked by drug legalization, the court was definitely heading in the direction of reversing Wickard. Perhaps now that the court is willing to reverse big cases like Roe and Chevron (so it seems) it will also be willing to reverse Wickard.

Re: FTC announces rule banning noncompetes

#332

Post by modeless »

nojito wrote: post #297
modeless wrote: post #167

Earlier quoted context omitted.

The difference here is that Congress isn't banning noncompetes. The FTC is doing it. Different branch of government.

Congress established the FTC.

Congress established many parts of the executive branch. Nevertheless they remain part of the executive branch, a separate branch of government from Congress, and this distinction is legally important.

Re: FTC announces rule banning noncompetes

#333

Post by mminer237 »

jameshart wrote: post #319
mminer237 wrote: post #301

Earlier quoted context omitted.

The Supreme Court often dismisses cases for the entire reason that constitutionally it can't make laws. That's Congress's job. It's fair to be critical of how much Congress can punt its responsibility to a 4th branch of government with little oversight.

Kicking back a law because it's constitutionally not the business of government to have laws that say that, is very different than kicking back a law because while it is something upon which legislation could constitutionally be had, and the executive is acting in accordance with the law as written, the judiciary doesn't like the way in which the legislature chose to phrase how it delegated authority... that's a diff…

The FTC is not an executive department. It is an independent agency. Though nominally considered part of the executive branch, it has been delegated Congress's authority while also been given intentionally limited executive oversight/control.

Personally, I feel Congress giving its authority to the executive branch breaks constitutional separation of powers period. Could Congress grant the President autocratic authority? SCOTUS says it has to give sufficient standards to delegate authority and inconsistently says yes or no to different attempts, but really what congressional standard did the FTC use to arrive at this (admittedly good) rule?

Re: FTC announces rule banning noncompetes

#334

Post by oceanplexian »

jameshart wrote: post #290
xpe wrote: post #272

Earlier quoted context omitted.

It is wise to look at an argument with extra caution when you see the phrase “unelected government agency”. There are (of course) valid powers available to agencies. The question is what powers are valid. Beware the dark arts of rhetoric. I’m familiar with spotting this one because my constitutional law professor used it often. He helped us to see right through it. Logic and argumentation should win, not words design…

Indeed. Government agencies are overseen by officers of the United States, appointed by the president with the advice and consent of the senate, typically to terms greater than the length of either a presidential to senate term. Just like Judges. The idea that courts are the only delegates of the elected representatives of the people who are allowed to figure out the nuances of how to carry out the democratically leg…

It’s not really a brainworm, it’s the fact that people see the government in radically different ways.

My view is that as long as there’s genuine consent, two parties agree to something, no one is coerced, both are of sound mind, two human beings should be able to enter into any contract you can imagine. It doesn’t matter if that’s Gay Marriage or a firearms transaction.

The role of government should only be to ensure that that both parties engaged fairly. The minute you want to start using the government to ban one thing or another based on some moral imperative, is the minute you stopped respecting the autonomy of other people and decided to force your morality on another through collective force.

Re: FTC announces rule banning noncompetes

#335

Post by cryptonector »

mminer237 wrote: post #307
nojito wrote: post #297

Earlier quoted context omitted.

Congress established the FTC.

People seem a bit confused. There are a few separate legal questions here: 1. Whether Congress can ban noncompetes nationwide through its ability to regulate interstate commerce. 2. Whether Congress can say "so-and-so can make any laws he wants about x". 3. Whether this is in scope of the FTC's mission of preventing unfair trade practices. To me, #1 is a clear no for intrastate agreements, but under Wickard it is con…

The SCOTUS likes to decide things on the narrowest possible grounds. That means that if it wanted to reverse this rule it would want to find grounds relating to (3), which as you note it probably could not.

The court could still decide that this rule is a "major powers question" and so belongs to Congress. This would allow the court to not have to reach any question of whether the FTC has broad powers, whether the act that created the FTC is constitutional, or whether Wickard was correctly decided. Therefore it seems more likely that the court would do that -again, if it wanted to reverse the FTC here- than anything else.

Can you imagine if the court ruled the FTC to be unconstitutionally created? They wouldn't risk that chaos.

Re: FTC announces rule banning noncompetes

#336

Post by jrs235 »

I see a lot of discussion about interstate vs intrastate commerce/non-competes. I would bet the farm that all these businesses have an EIN, an employer identification number, which is issued by the federal government and thus would be enough to show nexus and jurisdiction for federal regulation and allowing the FTC to take action here.

Re: FTC announces rule banning noncompetes

#337

Post by cryptonector »

timeflex wrote: post #168
yieldcrv wrote: post #50

Earlier quoted context omitted.

The federal government has the constitutional right to regulate interstate commerce, and 100 years ago it discovered that all commerce is now interstate commerce, followed by the supremacy clause which is selectively applied (ie. not for scheduled drugs, but for everything else) This Supreme Court could be friendly to invalidating that expansive interpretation though so, big mismatch from the executive branch / agenc…

The Supreme Court doesn't have any power to enforce its decisions. District and Appeals Courts could just say no to their decisions and there isn't much they can do.

When district and appeals courts do what they like, the SCOTUS can reverse every one of their decisions. The inferior courts can then go on a spree of incorrectly deciding every relevant case and delay the final judgement by years, but then the SCOTUS could just speed up its process of reversing every such decision by the inferior courts. The SCOTUS also has options for removing judges from certain types of cases, IIRC. It's a game that the SCOTUS invariably wins in the end -- unless it gets packed.

Re: FTC announces rule banning noncompetes

#338

Post by tchock23 »

Will this lead to companies getting creative with other types of agreements?

For example, I could see this leading to overreaching non-solicitation agreements, where you can't approach "any person/company ever added to our CRM" (for a period of time), thereby effectively ending any chance of you have of building or working for a competitor.

Re: FTC announces rule banning noncompetes

#339

Post by slotrans »

JumpCrisscross wrote: post #34
bretthoerner wrote: post #11

My attorney friends tell me that the FTC doesn't really have the ability to do this, since contract law is part of state law. (My poor paraphrasing, not theirs.) I've been surprised I haven't seen this mentioned on social media or in the news. Are my friends wrong, or are people celebrating because this is just a step in the right direction even if it may not do anything yet?

> FTC doesn't really have the ability to do this, since contract law is part of state law The federal government can absolutely regulate both employment and contract law. (Merger agreements are contracts. The FTC was established to block bad mergers.) Whether the FTC can do this is untested. But that’s more a Chevron issue than a federal powers one.

> The federal government can absolutely regulate both employment and contract law

Where in Article I Section 8 does the Constitution grant that power?

Re: FTC announces rule banning noncompetes

#340

Post by scheme271 »

bagels wrote: post #243
cjen wrote: post #24

This seems incredibly important. I know non-compete rules personally held me back at a previous tech job. I'm interested to see how this hits finance firms – I know people who were forced to take a year off between jobs (although they were compensated the whole time). Always thought that would be a pretty sweet deal.

I was denied a job I was well qualified for because, (paraphrased, besides the quoted part): Our CEO and your CEO have a "gentleman's agreement" not to hire people that work at eachother's company. I have no idea why the recruiter was willing to put this in writing, and thankfully, I was able to find other work instead. I know it's not a non-compete, but there are other ways that companies can illegally form cartels…

That got Google, Apple, Adobe and a few other companies in a lot of trouble because they all agreed not to recruit each other's employees.
Post reply on HN