Tomorrow the FTC will vote on a rule to ban non-compete clauses. The Agency’s hubris is quite something, but also almost certainly unconstitutional. These viewpoints come to readers care of someone who thinks non-compete clauses related to employment a generally bad idea. More on why they’re bad in a minute.
For now, imagine the FTC thinking it has the power to erase roughly 1/5th of employment contracts across the U.S. with a mere vote. One guesses that neither President Biden nor his predecessor in Donald Trump ever thought they had this much power, yet a federal agency with officers appointed by the White House thinks it does? Again, the hubris exhibited by the Lina Khan-led FTC is quite something, after which it doesn’t take a constitutional scholar to deduce that the FTC’s actions blatantly violate our founding document.
In thinking about what the FTC is trying to do, it’s notable that in the roughly 112-year history of the U.S. Chamber of Commerce, it had never expressed a national opinion about non-compete clauses. With good reason. The Chamber not unreasonably viewed it as a subject for the states.
Of course, the fact that the U.S. Chamber hasn’t involved itself in this issue speaks to the man-bites-dog nature of the FTC’s actions. Or maybe not. Readers can conclude for themselves how odd it is that federal appointees are trying to make law for all fifty states.
Read the entire article at Forbes
