The Chamber of Commerce barely waited a day to sue the FTC over its recent decision to ban noncompete agreements. The New York Times tells the story:
The lawsuit, filed in a U.S. District Court in Texas....
I am shocked. However, my prediction from yesterday got the compass wrong. I figured the Chamber would sue in the northern district of Texas, but instead they sued in the Tyler division of the eastern district. However, both judges in the Tyler division are Trump appointees, and one of them, Campbell Barker, struck down the federal eviction moratorium in 2021 and an NLRB rule a few weeks ago. The Chamber should be in good hands.
Judge Ho probably has already written a draft opinion for the fifth circuit holding the regulation beyond the authority of the FTC and for good measure holding the FTC Act unconstitutional for lack of Federalist Society approval.
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There's little doubt that this rule will be struck down, both in Texas and eventually in the Supreme Court. Ideally, it's struck down very narrowly because the FTC overstepped its authority and not because the rule in and of itself is unconstitutional. Laws can be passed state by state or on the federal level.
I think you're fundamentally misunderstanding the problem. As long as right-wing Republican judges like Barker can enter nationwide injunctions and also determine their own jurisdiction, laws can't really be passed by the states or by congress unless they're suitably right-wing. There's certainly no federal law or regulation that can't be struck down in Texas and if the district court can determine its jurisdiction for itself (likely on made-up facts) even a phony connection with Texas will probably suffice.
The reality is that the Democrats need to introduce legislation that allows the arbitrary transfer of district court judges and/or codifies restrictions on venue (perhaps by changing the federal rules). Nothing else will dissuade Republican judges because they know that it's impossible to remove them from office.
And, yes, I understand that Republicans in Congress have already blocked legislation related to venue once and will surely do so again but, nevertheless, the Democrats need to bring this issue to the forefront of public awareness and make the Republicans keep voting to demonstrate their lust for raw power and their utter disregard for fairness.
The FTC does *not* pass laws. It puts forward rules and regulations. This is why I make a distinction between striking the FTC rule down because it overstepped its authority, then a law can be passed. On the other hand, if it's struck down because constitutionally it's not permissible to limit such things, then it's a different matter. This is a very important distinction.
So, yes, laws can be passed! And should be passed!
First, I don’t think the federal government has in any way exceeded its authority in banning non-compete clauses. It seems like a totally reasonable use of its authority.
Second, in the context that Kevin’s discussing, there’s no difference between a federal regulation and state or federal legislation. As long as right wing activists and big business interests can bring a suit in a venue where they’ve got absolutely no legitimate basis for doing so and the court can issue a nationwide injunction, laws can be swept aside as easily as regulations.
That’s the main point I’m trying to make. A single district court judge can essentially decide legal decisions for the entire nation. And the Democratic Party needs to do something to stop it. There’s lots that they could do such as changing the rules regarding venue or arbitrarily moving certain judges out of single judge districts to someplace like Alaska or creating more judges on the appellate courts.
Why is this rule outside the FTC's ability to regulate?
It's a restraint on trade, which is totally in the FTC's wheelhouse?
Like, it's your argument, make it, but did you even try?
The judges in the Tyler Division should probably read this article by Professor Hovenkamp of the University of Pennsylvania Law School, discussing the authority of the FTC to enforce the provisions of anti-trust legislation. Professor Hovenkamp has been at this longer than those judges, and his bona fides are beyond reproach. Reading this article would reveal that the ruling will be overridden:
https://scholarship.law.upenn.edu/faculty_scholarship/1813/#:~:text=The%20FTC%20has%20explicit%20antitrust,although%20not%20the%20Sherman%20Act.
I just want to note that while it seems a solid argument from a very good scholar, it doesn't follow that it will win the day.
Because "solid argument from very good scholar" can never be counted on to win the day, despite any pretenses we might have.
I mean, if some shared objective truth were the guiding light of legal interpretation, there wouldn't be any need for a Federalist Society, would there?
Doesn't matter if is an administrative over reach or not by the FTC. Biden should certainly campaign on the merits of the having eliminating non competes for fast food employees, and how he is delivering for working class Americans. If and when the ruling is struck down by Texass judges and then SCOTUS, then he should just blame the MAGA judges and MAGA congress as anti worker.
It's a good issue, so Biden should campaign on it.
Oh, this is a good take!
Noncompetes benefit bad businesses that are trying to avoid having to work hard to avoid getting eaten by the competition, while harming businesses that are trying to defeat the competition by actually being better. A genuinely good business has no cause to fear its employees getting poached and benefits from being able to poach from worse businesses.
Noncompetes need to be banned with NO EXCEPTIONS. For low wage workers they are straight up abusive, and they prevent highly skilled workers from being allocated to their most productive use. The former is unjust, but the latter is the part that does the most damage to the country as a whole.
The only exception is executives. Which, well, that seems the only proper use of noncompetes: as executives actually are sucking up investment monies and have access to all the real proprietary materials - and they're definitionally not incapable of taking care of themselves by doing a different industry or job.
California doesn't offer an exception for executives... and the results are just fine. Executives are usually so overpaid that they wouldn't leave anyway, and if they do want to leave it's probably because their talents are better spent elsewhere.
We have other laws to protect intellectual property. Inhibiting labor reallocation does far more harm than good on every level of the pay scale.
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Ooo.
What’s to prevent a pro-labor group from filing a lawsuit against the injunction in a sane court district?
That's not how law works, alas.