As font & Keough point out ...
by ndtnguy (2024-04-24 09:37:44)

In reply to: I wouldn't go that far.  posted by novusordo0205

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That's only tangentially a Constitutional question. The executive, of course, doesn't have the power to enact any laws. But Congress has authorized the FTC to make regulations on a wide variety of matters, and this kind of regulation is certainly within Congress's powers under prevailing doctrine.

Is it within the permissible scope of the FTC's regulatory authority under the FTC Act? That I don't know. But if it isn't it will be because of what the FTC Act says, not because of what the Constitution says.

Thanks
by novusordo0205  (2024-04-24 12:07:25)     cannot delete  |  Edit  |  Return to Board  |  Ignore Poster   |   Highlight Poster  |   Reply to Post

The argument that will be made - and has already been made by Gibson Dunn on behalf of Ryan, LLC - is that the Noncompete Rule violates the Constitution in a number of ways (unconstitutional delegation of legislative power in contravention of Article I; FTC Act's removal protection for Commissioners violates the Vesting Clause of Article II).

For what it's worth, I think that analysis by courts will likely involve the FTC Act, the APA, application of the "major questions" doctrine, and the Constitution. Glad people far smarter than me will be deciding this.