There are specific cases where they should be allowed, but in the general case no. Specific cases shouldn't even rely on competition, but of specific non-public information.
The list of customers of a company is something you should not be taking with you when you go work for a competitor. The next feature you will implement is non-public information.
A non compete is only about someone who you want to continue working for you. If the competitor offers a significantly better wage you didn't want to keep them in the first place (even if you offer match too bad - if you were serious you would have been paying them that much already), though of course the competitor needs to be serious (that is not hiring someone away and then letting them go). If you lay someone off then you don't want that person to work for you and the non-compete is obviously invalid.
Your interpretation of the coverage of applicability of noncompetes is interesting. But unfortunately that is not how many noncompetes are written and in many states enforced. Noncompetes, at least as usually written, restrict employees regardless of whether they resigned or are laid off [1,2]. The chilling effect is exceptionally strong. If you are laid off and under a noncompete, what company is going to dare subject themselves to the legal risks in hiring? I know multiple folks and personally experienced being subject to multi-year long unpaid noncompetes that were geographically universal after layoff in even California where NCs are supposedly invalid. And every attorney I talked to said there was nothing I could do. Companies have millions to spend, strong arbitration protections, and way better attorneys than individuals could ever hire. Few will dare to challenge.
The list of customers of a company is something you should not be taking with you when you go work for a competitor.
Businesses already have recourse for information like this. If they take reasonable steps to protect the customer list then they can sue the ex-employee for stealing trade secrets.
I feel like they should be enforceable, but only under the same compensation as the labor was in the first place. Make companies pay for the privilege.
I didn't end up taking it, but I was offered a job with a company based out of Illinois that did this. Upon termination (voluntary or otherwise) the company had the choice to enforce the noncompete clause or not. If they chose to enforce it I'd have gotten paid my salary for the duration. A lawyer explained to me that this was how they were working around Illinois restrictions on non-compete clauses. Normally the terms they were applying wouldn't be enforceable, but by continuing the salary they were essentially extending the employment agreement.
To be in the realm of fair non-compete compensation needs to be total comp and not just base salary. In the US while not working you need to cover healthcare costs and many roles have a significant portion of comp from percentages of sales, bonuses, and other incentives. Just a base salary payment during a 6-12 month furlough would be a big pay cut for many.
There also likely needs to be some additional compensation for lost time in the market when skills are atrophying or new experience isn't being gained.
Non-competes have a place, but there needs to be tons of rules around their use, like only being available for specialized and other high paid roles. Something like 3x-4x median salary to be a position eligible for a company to even propose a non-compete.
> I just can't understand how anyone can, with a straight face, argue that non-compete clauses should be allowed in a free market.
Companies don't have a face, so they don't need to keep it straight. They will simply amorally argue for anything that increases their money or power, and argue against anything that decreases it. They don't even need to be consistent, and are unburdened from human feelings like shame and hypocrisy. They can effortlessly argue for some principle XYZ when it helps them, and then turn around and argue against XYZ in cases where it hurts them.
They are permissible in a free market the same way NDAs are: one freely trades an opportunity to exercise a right at some future time for a guarantee of payment today.
This logic only works in a world where all employees have the same leverage as employers, such as with a labor union.
In reality, in the vast majority of cases, the employers have much more leverage, and therefore non-competes aren't used as a negotiating tool for both parties, they're used by employers to stifle competition for labor and therefore stifle salaries.
That's not a condemnation of non-competes per se but rather suspicious, bad-faith timing or even duress. With few exceptions, the FTC intends to rule that non-competes are illegitimate as a class of contract, not merely contend with the manner in which they are dispensed. The latter has often been used as reasoning for the former, but is not the particular target of the intended regulations.
"I know people who are primarily voting to preserve this FTC."
That would also be a grave mistake. Unfortunately, it is not possible to "vote to preserve this FTC" anymore. That possibility ended when Biden was pushed out.
Biden is a major reason, arguably the only reason, Khan and Kanter are able to do what they are doing.
Harris is pro-Silicon Valley, as in she has not taken any meaningful _action_ against it (cf. rhetoric). Biden is definitely not pro-Silicon Valley. He made the right appointments and nominations and "ordered" agencies to take necessary action; indeed they have.
I've seen three perfectly reasonable seeming submissions about this get almost immediately flagged.
Some serious dark forest shit, even for HN. It sucks that there is so little accountability for those who deny access to information here.
There's very little that's given me hope for government like seeing an FTC that's doing something, thats protecting consumers & making sure there's some competition. It's been so very long since Reagan so effectively stomped out anti-trust regulation, and my gut feeling is that much of the disenfranchisement today has roots in the seemingly ever growing imbalances Thomas Piketty so thoroughly detailed. The FTC is a key agency to keeping civilization bought in on our social contract.
That's because as much as they may not want to admit it, HN skews "techbro conservative". It's a large enough segment of the community here that when they chose to exercise their collective will, they can influence discussion on the site.
I definitely see some people complaining about liberal bias on social media getting voted down to heck. So yeah there are some negative voters on both sides. (personally it feels like there's been a stupendous lack of evidence & these opinions deserve the downvotes, but it at least is an example of downvoting going both ways.)
But man there is such a suppression of hacker spirit, of possibility, of everyday can do, of belief in the everyman and the barefoot developers. It's astoundingly how brutally malicious the conservative downvote squads are, and even more perniciously how much perfectly fine but inconvenient content gets flagged. It's hugely one sided; one side builds cases & tries to win hearts & minds, the other tears down, by any means available. So so rarely do I see conservative claims made on hopes or possibilities.
Personally I think downvotes & especially flags should be more open data. The ability for a small pack of people to so consistently come and downvote out things they don't like is lame & tragic. But to so readily suppress is especially rank & disgusting. There are some incredibly persistently techbro conservative voices on here, it feels like, leveraging their accounts with enormous widespanning consistency & frequency, to close down ideas & thoughts. And they get to operate entirely from the shadows, and that ain't cool at all.
At the very least there should be some way to see controversialness. It's hackerly to have some kind of data, to see pressure points! It stuns me how many things I have that are going up up up, only to have them get some down down voted. Seeing where there are these conflicts are, seeing that there strong valence both ways, I think would clarify a fundamental resonant truth of matters that right now is just cast away, lost to the losers of downvoting.
Chevron being overturned doesn’t in any way prevent a court from deciding that the statute authorizes a regulation. It just prevents the agency from saying “you have to defer to our reasonable interpretation.”
But yeah, the conservative Supreme Court indeed may very much not like the Pennsylvania court’s interpretation that the necessary statutory authority does exist.
I mean, the problem with the current supreme court is that their decision-making process -- as demonstrated in the Trump immunity case (where the ruling was in direct contradiction to established law) -- is not a question of what the law says, but what the conservatives on the court (or their deep-pocketed bribers) want.
The problem with that is - as demonstrated by the RvW over turning - is that it's not what the law says - since there was never law backing RvW. It's what THIS court says vs what PREVIOUS courts said.
The good lawyers giveth... the good lawyers taketh away. Judicial activism overturned by judicial activism.
The trump immunity case put forth what has always been - Presidents aren't charged without being impeached first. Something the left was trying to change. because lets be real... others - ie: Clinton lying under oath. Obama bombing countries. Bush. etc. All have done "criminal" things. The only difference is both sides of elites don't like Trump so the left decided to try and treat him differently. Which got rejected as it should be.
and besides that... "direct contradiction to established law" is a direct contradiction to what actually happened. The left was trying to wrangle laws into directions not intended to be overly broad - like they are doing to jail "J6" people.
I'd have thought that lots of countries have immunity for representatives / members of the executive which can only be revoked by a vote in the legislature. Isn't this quite common?
It sounds reasonable to NOT allow just any member of the judiciary to prosecute members of the other branches, which might wreak havoc on the political process?
> I'd have thought that lots of countries have immunity for representatives / members of the executive which can only be revoked by a vote in the legislature. Isn't this quite common?
As far as I know it's rather common for official acts, not for criminal endeavours outside of the attributions of the executive branch.
From what I gather the Supreme Court decision ruled that former presidents have broad immunity, that's not common at all. I'd guess it's common in places like Russia or similar but not in functioning developed democracies.
I can only speak for Germany here, and the law here is, that, as a member of the parliament, you have immunity for anything relating to criminal law, as long as you hold your seat. As quite some members of the Government are also members of the parliament, they have immunity though that, but not through their government office.
The living practice is, that the legislative will void immunity upon request. I don't think they have ever failed to do so. The previous parliament voided immunity a staggering 25 times.
> It sounds reasonable to NOT allow just any member of the judiciary to prosecute members of the other branches, which might wreak havoc on the political process?
The judiciary does not (and cannot) prosecute. Prosecutors are officials of the executive for this very reason. Regardless, offering blanket immunity as the solution to people hypothetically log-jamming the political process with frivolous lawsuits is laughable. I guess Bob Menendez shouldn't have been potentially interrupted from doing the peoples work.
Apparently, the history of parliamentary immunity is, that you don't want the executive to interfere with the parliament outside the constitutionally defined channels.
> Regardless, offering blanket immunity as the solution to people hypothetically log-jamming the political process with frivolous lawsuits is laughable.
What is the alternative? Think it through, an evil executive surely has the power to (lawfully, or not) arrest members of parliament, which could clearly throw a wrench into the gears of parliament, no?
> I guess Bob Menendez shouldn't have been potentially interrupted from doing the peoples work.
My comment did not imply that prosecution should be impossible. And clearly there are established ways to waive immunity in cases where the majority of a parliament agrees that prosecution is warranted.
To be fair, January 6 people could also be prosecuted on lesser charges (trespassing, assault), but DoJ wanted a bigger charge they could apply to everyone.
> The trump immunity case put forth what has always been - Presidents aren't charged without being impeached first.
Trump was impeached. He was not convicted. Funny enough in his second impeachment trail his own lawyer argued that he shouldn't be convicted in the Senate because he was not immune and could simply be tried in the courts.
McConnell made the same argument: "We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one,"
And in fact there are plenty of examples of Presidents being assumed not to be immune, the pardoning of Nixon for example.
Futher the Constitution explicitly grants legislative immunity to legislators but does not mention any such immunity to the President, a circle this decision doesn't even begin to square.
The argument that the president has always been presumed immune goes pretty aggressively against history.
"was impeached, not convicted" you're being pedantic and you know I meant convicted. Yes, he was impeached... but not convicted so that's the end of it. A democrat house impeached and a republican senate found him not guilty.
"his own lawyer" lawyers talk shit... we now know, per SCOTUS, the correc tpath.
"presumed immune" I don't think that the President should be immune, per-se... but the crux of the current problem is Democrats going after a Republican - and vice versa, if that was to happen.
Remember... Trump said "lock her up". Then didn't. (and yes, she's not the POTUS - thankfully - but my point stands).
Trump's response through the courts is in response to Democrats prosecution through the courts.
For example... he was charged with and became a "felon" for misdemeanor charges (no clue what those were) bumped up to felonies for "election interference".
Meanwhile: Hillary was charged with and actually convicted of those things - misdemeanor charges that she paid a $130k fine for (if I'm not mistaken). Doing stuff to influence an election. The exact thing that should have been turned into a "felony" per the law as being used by Democrats.
We are at this place, arguing about presidential immunity, which we haven't been to before because one side is actively persecuting a rival who they LITERALLY wouldn't be persecuting if he wasn't running for office again.
So the "the president isn't presumed immune" was never tested because the Justice System was never weaponized before.
> "was impeached, not convicted" you're being pedantic and you know I meant convicted. Yes, he was impeached... but not convicted so that's the end of it. A democrat house impeached and a republican senate found him not guilty.
Mostly true, but since we're discussing his second rather than first impeachment trial, it was not a Republican Senate that found him not guilty - it was a Democratic Senate, specifically one split 50-50 but with Democratic President of the Senate (VPOTUS) Kamala Harris as the tiebreaker. Also he was acquitted only due to the supermajority required - a majority of senators, including 7 Republicans, did vote to convict.
Plus, even though Senate Minority Leader Mitch McConnell said he voted to acquit based on his interpretation of the Constitution - I think this was about whether a former president could be impeached and convicted at all - he also said that Trump was "practically and morally responsible for provoking the events of" January 6.
> "his own lawyer" lawyers talk shit... we now know, per SCOTUS, the correc tpath.
We know the path that SCOTUS has made legally binding on lower courts, but it was not handled in a way that gives most Democrats faith that it was a fair ruling. In particular, I have zero confidence that they would have ruled the same way if the defendant had been a Democratic former president rather than Trump.
I'm going to use a word you used in your comment and say that most Democrats feel the judicial system is heavily weaponized by Republicans against Democrats, not by Democrats against Republicans.
> Remember... Trump said "lock her up". Then didn't. (and yes, she's not the POTUS - thankfully - but my point stands).
I have no idea what point this is supposed to represent.
> For example... he was charged with and became a "felon" for misdemeanor charges (no clue what those were) bumped up to felonies for "election interference".
You're referring to the NY case here, which is actually the least severe of his four cases. But sure, it's the only one where he's been convicted so far.
He was indicted by a NY state grand jury, at the request of a NY state district attorney, of falsifying 34 business records (about the hush money payments to Stormey Daniels) with intent to defraud, where the "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof". Without that extra intent regarding another crime, this would just be a misdemeanor under NY law, but that extra intent makes it a felony.
The 12-member NY state trial jury could only convict Trump if they found unanimously that this was proven beyond a reasonable doubt.
What "other crime" were they asked to find in this case that Trump had the intent to commit or to aid or conceal the commission thereof?
Again, the 12-member NY state trial jury could only convict Trump if they found unanimously that the intent to commit this "other crime" was proven beyond a reasonable doubt.
The "other crime" in this case was NY state Election Law section 17-152, which is basically about two or more people conspiring to affecting the result of an election "through unlawful means".
What unlawful means? The prosecutor listed three possibilities: a tax crime, falsification of bank records, and a federal campaign finance violation. The jurors in this case all had to find unanimously and beyond a reasonable doubt that the intended conspiracy to affect the result of the election involved one of these unlawful means, but they did not all have to agree unanimously on which unlawful means was involved.
> Meanwhile: Hillary was charged with and actually convicted of those things - misdemeanor charges that she paid a $130k fine for (if I'm not mistaken). Doing stuff to influence an election. The exact thing that should have been turned into a "felony" per the law as being used by Democrats.
Not true. Hillary's campaign and the DNC paid civil penalties ($8k for the campaign and $113k for the DNC) to the Federal Election Commission to settle an investigation, with no criminal charges or convictions and no criminal fines, no involvement of the judiciary or the DOJ at all, no finding by any judge or jury that the FEC's allegations were true, and with Hillary's campaign and the DNC still denying the accuracy of the allegations.
Also, while the FEC is evenly divided between the parties and not especially partisan, these actions which you found serious enough to call charges and convictions happened under the current term of President Biden, after the underlying complaint had been received under the Trump administration. Seems pretty non-weaponized to me.
What's more, even if that had been a criminal investigation, there's no way a federal prosecutor can charge the same statutes as NY prosecutors can charge, and vice versa - two entirely separate criminal systems. So what works in NY state criminal law and what works in federal criminal law are not always the same. There are other examples of NY state law being stricter than federal law, such as in securities fraud.
> We are at this place, arguing about presidential immunity, which we haven't been to before because one side is actively persecuting a rival who they LITERALLY wouldn't be persecuting if he wasn't running for office again.
To be honest, the NY case would probably have gone forward even if Trump weren't running again, simply because it would still be good politics for the prosecutor involved. I am opposed to prosecutors being elected for exactly this reason, but that isn't specifically a Democratic problem: most US states elect their local prosecutors, including most Republican states.
And as much as I said it was the weakest and least important case of those being brought, keep in mind that the group of people who ended up convicting Trump was neither the elected prosecutor nor Judge Merchan: it was 12 ordinary New Yorkers, including at least some of whom (I forget how many) support Trump in the political or policy context, who unanimously decided after hearing the evidence that the criminal charges had been proven beyond a reasonable doubt. The case was still strong enough to convince them of that. Plus the entire 34-count indictment could only get brought in the first place after a NY state grand jury decided that the prosecutor had presented enough evidence to constitute probable cause for the indictment.
That isn't very weaponized. It wasn't a partisan or even elected judge convicting Trump, it was a jury of his peers. Note that Judge Merchan is not an elected official, unlike a few NY judges and unlike most judges in certain other states. He was first appointed to the bench by former NYC Mayor Bloomberg, who was registered and elected as a Republican at the time, and was appointed to his current position by an appointee of an appointee of a former Democratic NY governor.
Also, the just-as-elected NY statewide Attorney General Letitia James declined to bring certain criminal charges against Trump (I'm not sure exactly what they would have been), because she felt she couldn't prove them to the high criminal standard of proof of beyond a reasonable doubt. I think she did bring similar charges as a civil lawsuit with the usual "more likely than not" standard of proof, but that's a Democratic elected NY prosecutor responsibly avoiding an unjustified witch hunt even where it might be good partisan politics to go overboard.
Last thought - the classified documents case is one where Trump has gotten extreme leniency compared to what an ordinary defendant would get, not extreme weaponized prosecution. If a nonpolitical government employee with a security clearance had kept classified documents after leaving their employment and had refused to return them after the government had noticed the situation and requested their return, they would have been physically put in jail, and probably also convicted, long ago. There is no real way to call that one weaponized.
> So the "the president isn't presumed immune" was never tested because the Justice System was never weaponized before.
It wasn't tested before because Nixon was pardoned, period. A draft grand jury indictment against Nixon was unsealed in 2018, and Ford's pardon is very likely the only reason those charges didn't go forward - at the very least, a prosecutor thought the situation justified enough to present to a grand jury.
Besides Nixon and Trump, are you aware of any former presidents where a prosecutor concluded that criminal charges were warranted under the usual standards of evidence and proof underlying charging decisions? I'm not. All the other cases that get widely discussed either didn't involve former presidents, didn't involve violations of criminal law, or didn't involve the required evidence and proof for prosecutors to expect that they could successfully obtain a conviction.
>it was not handled in a way that gives most Democrats faith that it was a fair ruling.
You don't have faith it would have been handled the same but you have faith that a Democrat would have had these charges against them?
Just for comparison... Hillary committed misdemeanors that LITERALLY was money crimes to influence an election. The exact same "crimes" that Trump had turned into felonies (without actual evidence of the crimes).
The problem we are in today is that these cases (4 of them) are obviously, blatantly and undeniably political and everyone knows that if Trump wasn't running for reelection or if Trump wasn't a Republican? These charges wouldn't be brought.
> it wasn't tested because
exactly. It wasn't tested. A draft grand jury indictment isn't an indictment.
> you aware of any former presidents where a prosecutor concluded that criminal charges were warranted
Are you aware of any prosecutors that were illegally appointed and paid for? because if you want to talk details, stuff like that is important as well. Florida wasn't appointed properly.
And, lets be honest... a lot of the "proof" is suspect. IE: The J6 committee that hid and deleted evidence from Republicans or the Jean trial where character evidence wasn't allowed showing that she's crazy. (Oh... statute of limitations be damned as well for a he said-she said civil trial).
The end of the story the main problem is you can complain that SCOTUS would do differently if it was another party... but you can't do that and ignore the fact that these cases are getting to the SCOTUS because the lower courts are treating Trump differently because of party and politics.
Weaponization of the "Justice System".
> Last thought - the classified documents case is one where Trump has gotten extreme leniency compared to what an ordinary defendant would get
Really? I find it extremly lenient to not charge a Senator for keeping classified documents unsecured in his garage. I find it lenient for another Senator to not get charged for storing classified info on an illegal server then deleting the evidence that was under subpoena.
Yet somehow... it's lenient that a POTUS who's working with the "archive" gets raided without warning and a photo op happens? then the prosecutor admits to doctoring evidence?
Trump is being treated leniently?
We have a different definition of lenient, I think :)
> The trump immunity case put forth what has always been - Presidents aren't charged without being impeached first.
Can you point me to the part of the constitution describing the procedure for impeaching former presidents? If they do the crimes at the end of their term is that just water under the bridge?
> The trump immunity case put forth what has always been
I find this the most disturbing aspect of contemporary attempts at justifying the Supreme Court's behavior. When the court was full of liberals, they were doing judicial activism and that was bad and their decisions should be overturned. But now that those presidents who lost the popular vote got our guys in, the Supreme Court's interpretation of the law isn't the product of biases and preferences held by political appointees, it simply reveals eternal truths set out by our most benevolent god-kissed founders.
> When the court was full of liberals, they were doing judicial activism and that was bad and their decisions should be overturned
and now we are in a court full of conservatives who are doing judicial activist and that's bad and their decisions should be over turned, the courts should be expanded and those we disagree with should be charged with crimes, etc.
That argument goes both ways.
The reality is we are having the conversations as a result of the Justice System being abused SOLEY because one side is charging a political opponent with EVERYTHING they can think of by stretching laws in ways that were never intended.
Previous Presidents weren't presumed immune? That's never been tested because previous presidents weren't prosecuted - despite clear evidence that things have been done wrong but any president you can choose. Biden, Obama, Bush, Clinton, etc? Pick your president and we can probably find crimes worth prosecuting. Yet... it didn't happen previously.
What we have now is CLEARLY political persecution against a political rival. Crimes he's being charged with (IE: his "felony") are done by others (IE: hillary who was convicted of money crimes and paid fines to influence an election) and yet not thrown to the wolves via political persecution.
Why are we here? because of the weaponization of the court system.
Which part of the presidential majority opinion did you take issue with?
I found it grappled with some weighty issues and made a defensible position, that I expect will be refined when/if the case returns to the Supreme Court.
The framers understood the concept of immunity, and in at least one instance explicitly granted it in the constitution. They did not mention anything about immunity for the chief executive.
The line of argument about "bold and decisive action" is complete bullshit. The OLC has told previous presidents, in writing, that they are not immune from prosecution and that knowledge did not fatally impede their judgment. The president also has a fleet of lawyers at their disposal, and the DoJ conceded in oral argument that if the president obtained an opinion from the attorney general that a given act was indeed legal, the president would have immunity for that act via estoppel by entrapment.
The opinion does almost nothing to establish what is and is not an official act for the purposes of this new immunity. This has become a hallmark of the Roberts court; making a power grab by writing an opinion that rests on laughably malleable language ("major questions", "deeply rooted in tradition", "official acts"). You can just wait until your friends appeal the cases that didn't go your way, grant cert because of course you get to pick your own dock, and laugh all the way to the bank.
The cherry on top is the part prohibiting even the introduction of evidence relating to official acts. If the president openly takes a cartoon burlap sack of money in exchange for a pardon, the standard set out in the opinion is that you cannot introduce any evidence pertaining to the grant of the pardon, because the pardon power is a core constitutional authority of the executive.
The entire opinion is ahistorical, poorly reasoned, and profoundly unwise.
> The opinion does almost nothing to establish what is and is not an official act for the purposes of this new immunity. This has become a hallmark of the Roberts court...
That was the part I found most wise. Given the polarization of the issue, avoiding commiting anything to specific and tossing it back to lower courts seemed a decent middle ground.
If/when it comes back up and the specifics are declared, then I'll decide.
My opinion is that Roberts may be waiting for Thomas to retire, and is trying to tread water by throwing the more staunchly conservatives temporary bones, lest they etch bad precedent into stone.
The court is not conservative, it routinely sides with the federal government. They rarely find things unconstitutional, only that certain actions taken by agencies aren't authorized by the congress. If congress passes more laws, the court would uphold them.
If the court even remotely reflected the opinions of actual conservative voters, it would take radically different and drastic actions compared to what has happened.
Fair points. I was sticking with the (quite common) framing of the previous commenter, but it’s actually more accurate to say that the Supreme Court’s majority is aligned with the plutocratic and corporate donor interests underlying the elite parts of the Republican Party and the Federalist Society. These misleadingly label themselves as conservative to their voters while in fact being quite activist and reactionary rather than truly wanting to conserve anything.
With that said: I was merely agreeing that this “conservative” (read: pro-corporate) court majority might decide that the Texas court was right to find this regulation outside the scope of the relevant FTC statutory authority, but not that they’d find it unconstitutional for the federal government in any broader sense than that.
(Of course, the reason regulations beyond the scope of statutory authority are legally invalid is exactly because of a constitutional separation of powers issue between the executive and legislative branches. This is the case even when it would be constitutional for Congress to legislate the matter directly or to authorize the executive branch to make such regulations.)
> If the court even remotely reflected the opinions of actual conservative voters, it would take radically different and drastic actions compared to what has happened.
It literally has done just that with overturning Roe, Chevron and the ruling on presidential immunity.
Conservatives would have ruled that abortion is murder and it would be banned country-wide. Instead, it was handed back to the states, presumably because there's no federal legislation allowing it.
Chevron, again, deferred to congress, as I said. Conservatives would have found that agencies have no rule making power whatsoever, and can only implement what is explicitly authorized by congress.
There's already an impeachment process for holding the executive branch accountable for official acts. And likely, if there was a statute the congress passed explicitly allowing the President to be charged with crimes, the court probably would have upheld it. Conservatives would have been happy to charge Obama with murder for the targeted drone strike against and American citizen in a country we weren't in a congressionally authorized war against. Generally speaking, conservatives want to strip all immunity and authority from the executive branch.
So again, the court is a poor caricature of actual conservative positions.
> Conservatives would have ruled that abortion is murder and it would be banned country-wide.
How does that viewpoint conserve anything, such that it warrants the name “conservative”? It doesn’t even conserve religious liberty, since all Jewish rabbis view abortion as not only permitted but required when necessary to save the life of the pregnant woman, and some rabbis also hold the same view when it’s necessary for the woman’s physical or mental health.
What’s more, Jews do not view life as beginning at conception, and calling an early-stage abortion murder is a Christianity-centric view.
The country was explicitly not founded upon the Christian religion [for purposes of government], as the founders acknowledged in the Treaty of Tripoli, and as respected in (approximately?) all subsequent court rulings.
Adopting a definition of murder that rejects Judaism in favor of Christianity is Christian activism rather than conserving anything as the label conservative suggests.
> Conservatives would have been happy to charge Obama with murder for the targeted drone strike against and American citizen in a country we weren't in a congressionally authorized war against.
So would plenty of people on the left, at least aside from questions of presidential immunity. What’s conservative about that viewpoint?
I'm not sure what your aim is here. Whether or not the word conservative is the right label for a certain set of values, IDK. But it has a generally specific set of values in US politics, and by that measure, the supreme court does not have a conservative majority.
Yes, I was arguing that the word conservative is being dangerously misused by most of the political world in the US. This has the effect of camouflaging reactionary and regressive Christianist, corporatist, and plutocratic right-wing activism as somehow conserving the status quo, or even as returning to the recent rather than distant past. I know Hacker News is not primarily meant for arguing about politics, but hopefully we can agree that the hacker ethic wants to avoid linguistic confusion about the nature of the values one is describing, and the usual US jargon meaning of conservative is very confusing on this topic.
Setting aside for a moment the question of whether or not conservatives actually want to conserve anything, I think conservative has at least five separate sets of values in US politics. These correspond to the following five subgroups of the overall group of "conservatives":
1) The plutocrats and corporatists who fund the Republican Party in the interest of big business.
2) The voters who vote for the Republican Party on the basis of economic distress, wanting things to be better or the way they supposedly once were, opposing immigration and affirmative action/DEI and what they're calling wokeness, or so on.
3) The voters in the religious right whom the Republican Party has long sought as an expanded electoral base, beyond the voters mentioned in subgroup 2.
4) The politicians who pander to each of the above subgroups.
5) The values of the ideologically driven legal academics and judges and think tank researchers/analysts who curry favor with each of the above subgroups and who drive the conservative movement forward.
On many or even most issues, the Supreme Court has a conservative majority aligned with the interests or preferences of subgroups 1, 4, and 5, but sometimes not subgroup 3 (this misalignment is getting rarer over time), and often not subgroup 2. So basically, they are aligned with the conservative movement but not conservative voters.
I should note that Barrett, Gorsuch, and Roberts (I'm not sure about Kavanaugh) each have issues where they deviate from conservative doctrine far more than do Alito and Thomas. Still, on issues where conservative subgroups 1, 4, and 5 share a specific consensus on how SCOTUS should act, the SCOTUS majority that's usually called conservative will usually make it so.
This is more true with the current 6-3 majority than the previous 5-4 majority despite some occasional deviations on ideologically divisive issues, and if Trump wins a second term it will become vastly more true after one or two more of his SCOTUS appointments.
We can't have the only functional branch of government making laws they were specifically authorized to write. If you want non-competes banned you have to go directly through deadlock-as-a-service.
It's why I'm frustrated as the originalist/textualist direction of the courts where it's clear they want to massively reduce the ability of congress to delegate their authority. Because federal agencies didn't come into existence out of nowherere, they were created to solve specific problems with congress -- notably the speed of rulemaking and the lack of specific industry expertise. I genuinely don't know what they expect to happen when doing away with it and replacing it with nothing.
Letting the agencies go about their business and if they do something congress really doesn't like they have the ability to intervene is good system of agility and accountability.
Especially because states, red and blue alike, unburdened by the constitution in the same way also use this model.
If you want speed of policymaking, you can become more authoritarian a la china or have a more elitist policymaking system like some portion of european countries (see: France banning short haul flights, London congestion charge and ULEZ). I view the election of Donald trump in 2016 as a wholesale rejection of elitism in American policymaking rather than any true desire for conservative values.
> I view the election of Donald trump in 2016 as a wholesale rejection of elitism in American policymaking rather than any true desire for conservative values.
> If you want speed of policymaking, you can become more authoritarian a la china or have a more elitist policymaking system like some portion of european countries
I didn't realize the United States was an authoritarian system until just a few weeks ago. Free at last, free at last. Can you shed some light on what speeds of policymaking are definitely not authoritarian? Asking for a friend.
Having unelected, educated bureaucrats make policy like the chevron ruling permitted is definitely more elitist than having direct democracy or elected representatives make policy, which I would consider more populist. I’m not calling it bad or good, that’s just what it is, I think both elitist and populist are bad words these days
* The short haul flight ban is great, and widely supported. You don't need those flights anyway because the rail network is cheaper and better. Plus the ban has so many exceptions it's likely to not actually impede you when actually needed, most people wish it was stronger.
* The ban was passed by the Assemblée Nationale which is their congress. So I'm not sure what your point is, it wasn't unilateral.
> I genuinely don't know what they expect to happen when doing away with it and replacing it with nothing.
A golden age of value transfer to shareholders, unencumbered by communist concepts like "environmental protection" and "workplace safety".
Or at least that's what will happen for a while, until something happens, like some guy who's lost everything to his kid getting (and dying from) cancer - caused by drinking polluted water - realizing there's no real legal recourse anymore and deciding to take matters into his own hands.
But that's a simple possibility to the c-suite, not a certainty, and even if it were a certainty, it's not known if it's scheduled in the next fiscal quarter. So dump the chemicals in the waterway and get back to work.
Literally every concern can be pushed out into the unknown future, while every benefit can be quantified and added to the earnings call as a talking point.
EDIT:
You can downvote this all you want, but all of these agencies, rules, etc. are a part of a system meant to prevent and adjudicate issues that exist in society. If you remove that system, humans will come up with their own.
There's no citation, no elaboration, no intellectual discussion, no value added, no evidence that their claim is true. It's pure flamewar tangent, and like your comment, is unsuitable for HN.
It also says to not feed egregious comments by replying. So, in a way, complaining about someone not following the guidelines is itself against the guidelines. So if you were truly interested in the application of the guidelines you wouldn't mention someone wasn't following the guidelines.
The proper thing to do is to ignore the comment and let dang (or the voting system) handle it.
> It also says to not feed egregious comments by replying.
"Feeding" is overwhelmingly interpreted as "engaging with". I'm not engaging with the parent comment, I'm pointing out that they're blatantly violating the guidelines while avoiding engaging with their (non-)point.
This makes your point
> So, in a way, complaining about someone not following the guidelines is itself against the guidelines.
shaky at best, and invalid (at least according to the letter of the law) at worst.
I agree that the discourse would also be degraded if comment threads were filled with commentators constantly pointing out every little violation of the guidelines, which is why I try to avoid that, and downvote/flag/contact dang, but in egregious cases I believe that occasionally pointing out the trespass is valuable as a complement to those, because it explicitly reinforces the point that this kind of behavior is unwelcome and against the rules - a mere down voted/flagged submission may lead people (especially those from Reddit) to think that they're just being disagreed with.
(and, the difference between "people don't agree with my opinion" and "this behavior isn't appropriate" is that in the latter case people change their behavior or leave, while in the former case they keep their bad behavior but only let it out when they think they'll be agreed with, which further degrades discourse)
Is there any binding law that prevents any organization from bribing the Supreme Court into making favorable rulings? Shouldn’t the default assumption be that recommended judges are friendly to their influence?
The plain fact that the Supreme Court has record low level trust as an institution makes any important ruling that reaches their court something of an exercise in anxiety. I think that’s worthy of discussion and I don’t think the original comment was inflammatory. Just my own opinion.
> Is there any binding law that prevents any organization from bribing the Supreme Court into making favorable rulings?
There is not. SCOTUS justices can, and do, openly and privately accept bribes. The Supreme Court could make its own rules against bribery and enforce them, but it explicitly chose not to[1].
There is currently an effort to pass a law to require SCOTUS to have an ethics policy[2]. However, the party proposing it does not have enough power to enact it. It's up to voters now.
[1] Notice all of the rules in their recently released Code of Conduct use "should," not "must." There is also no enforcement mechanism. This "Code of Conduct" is functionally functionally equivalent to having no Code. https://www.supremecourt.gov/about/Code-of-Conduct-for-Justi...
[2] "Binding Code of Conduct for the Supreme Court: Congress should pass binding, enforceable conduct and ethics rules that require Justices to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Supreme Court Justices should not be exempt from the enforceable code of conduct that applies to every other federal judge." https://www.whitehouse.gov/briefing-room/statements-releases...
It's better to start an important discussion with a substantive comment than a quippy name-drop.
There's definitely an interesting discussion to be had about the lack of Supreme Court ethics guidelines and enforcement, bad faith judges, lobbyist influences on judges, etc.
But building that discussion on a flamebait parent post isn't the strongest foundation.
I am surprised that the Chevron case and this have not overlapped
I thought the outcome of Chevron being overturned (I.e. “3-letter-agencies can no longer unilaterally make laws”) would have come up here as well, since the FTC is part of the Executive Branch
(Not trying to comment on the underlying case. Don’t care to argue for or against NCs)
The overturning of Chevron doesn’t prevent executive branch agencies from unilaterally making law (in the form of legally binding regulations) through the Administrative Procedure Act process if they stay within one of Congress’s statutory grants of authority. “Unilaterally” is not the same thing as “immune to judicial review” or “entitled to automatic judicial deference”.
What Chevron previously said is that, if the scope of the statutory grant of authority was ambiguous and the agency’s interpretation of that ambiguity was reasonable, then the court must defer to the agency’s interpretation. That requirement is now gone.
Without the Chevron rule, courts will still uphold a regulation that was clearly statutorily authorized under the same conditions as when Chevron was good law, and they will still overturn regulations that were clearly not authorized by statute just as they did under Chevron.
For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution. Of course, courts still can and will give due consideration to the opinion of the agency and their subject-matter experts, just as they would consider the briefs and evidence from all parties to any dispute. Only the automatic deference which Chevron sometimes required is gone.
Regarding the FTC non-compete rule, neither court ruling relied on Chevron. One court found the relevant statutory authority to be sufficient through their own independent judicial analysis rather than through Chevron deference, and one found it to be insufficient (a finding which never involved Chevron deference).
> For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution.
Does this mean that, in ambiguous cases, judges wind up in a position where their judicial expertise takes precedence over the technical expertise behind the statues?
First of all, courts aren’t ruling on the merits of regulations, only on whether they were enacted with valid authority and following the correct procedure (including not being arbitrary and capricious). And the overturning of Chevron has nothing to do with how courts handle technical expertise behind statutes - it’s only about adjudicating the validity of regulations, not of statutes.
So the rest of my comment discusses the case when opinions from a regulatory agency’s technical experts are somehow relevant to whether a regulation is valid and not just to the regulation’s merits or lack thereof.
Judges are still either encouraged or expected (I forget which) to give due respect to the agency’s technical experts, based on pre-Chevron precedents. They’re definitely not forbidden from doing so.
But for example, what if the challenger also presents technical expert opinions which run counter to the argument of the agency’s expert?
Under Chevron, the court had no authority to conclude that the challenger’s expert-informed argument was more likely to be right than the agency’s expert-informed argument when both arguments are reasonable.
Now that Chevron is overturned, the court does have that authority. Just like in every other case outside the former scope of Chevron where one or both of the parties presents expert opinions to the court.
That’s it.
Honestly, overturning Chevron is mainly as impactful as it is because Congress isn’t sufficiently active at legislatively clarifying its vague statutory grants of regulatory authority or removing some of the more important substantive decisions from the whims of frequently changing executive branch administrations. In a parliamentary system where the government is supported by a legislative majority, both the laws and the regulations can be adjusted as needed, not just the regulations.
But isn't the overturning of Chevron itself an example of the Court ignoring the authorizations of Congress? Congress delegated the authority to agencies to make regulations.
> Congress delegated the authority to agencies to make regulations.
It did and it didn't.
As parent was saying, Congress generally created each executive agency through a specific authorizing act, that also contained what it should do and its powers.
Chevron (or its overturning) has to do with what happens when that authorization was ambiguous.
Previously (Chevron), courts had to defer to the agency. Now they don't.
Neither of which changes what courts have to do when the authorization is not ambiguous. Which is a lot of times.
You can always imagine an ambiguity into existence. Chevron deference meant that wasn't enough and now it is. Human natural languages are naturally ambiguous. This Supreme Court ruling encourages courts, especially Right-leaning courts to just declare that oops, this text was ambiguous and so even though it's obvious to any normal person that Congress did intend exactly the regulation at issue, a court can argue it isn't sure they meant that and so the regulations have no effect until Congress finds the time to spell it out to the court's satisfaction, which may be never.
The bigger problem is that as judges find more and more tortured ways to fit their ideology onto the raw text this is further destroying trust in the justice system which erodes not just the republic, which presumably Republicans no longer give a shit about, but the United States of America itself, the country. Even an Autocrat needs that trust, the US isn't Monaco, it cannot be managed without a vast bureaucracy.
What's notable about the present Supreme Court isn't that they're partisans, that's inevitable under the US system for decades at least. What's notable is that they're not very good judges. Scalia wasn't great but he was smarter than several of the newer justices which is at least something. And Thomas is a joke, if this man was on my magistrates bench I'd have him kicked out.
When is the last time you saw a US Supreme Court decision which articulates a good principle of justice and uses that to explain the decision such that it seems in hindsight obvious and inevitable? There should be several of these each season, ideally the vast majority of decisions. Instead we get tortured logic and the sort of dubious attempts at reinterpreting somebody else's words by ignoring their plain meaning that would get you a poor grade in an undergraduate essay. This means more work for the justices, further over-burdening a system that is failing.
Take Obergefell. The dissents are pretty stupid, but even the Kennedy decision is poor work, if this gets a passing grade in BA Law the lecturer is too generous. Yes, James Obergefell ultimately deserved at least what this decision gave him, but the decision can't bring itself to articulate a core principle to explain that. If the Supreme Court can't or won't take such a stance, why even have one?
I understand your take here, but I fail to see how this is really a rebuttal?
Congress has the ability to change the authorizing act if they believe that an agency is acting incorrectly when authorization is ambiguous.
If they do not do so - I would read that as congress intends the agency to act in the manner they are acting.
The court is now saying that failure to act is not a decision in itself, and that the courts are now allowed to decide - That feels like a fairly blatant power grab.
Why must congress be forced to continually act if the agency is making decisions it believes reasonable under the authorizations it granted? There will never be a law that lacks ambiguity - it's just not possible.
This is ridiculous and completely the political factors and personal financial stakes of the justices involved.
Chevron deference was in place for decades and congress steadily created more agencies and passed laws to restrict or add powers. If congress wanted Chevron deference gone, they had literal decades to have fixed it.
The free market works best when competition isn't stifled, and the name of the clause is literally a "non-compete".