Earlier this month, the Supreme Court heard two cases—Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—that are likely to have an impact on a significant initiative of the Federal Trade Commission (FTC). In January 2023, the FTC proposed a rule that would prohibit the use of non-compete agreements, treating them as an unfair method of competition. Whether the FTC will succeed in its effort to enact a competition rule may turn on the level of deference the courts grant it to interpret Section 5 and Section 6(g) of the FTC Act. That deference is substantial under the Chevron Doctrine; however, there are signs that the Supreme Court is interested in narrowing and perhaps abandoning the Chevron Doctrine. Both Loper Bright and Relentless give it an opportunity to do so. In October 2021, TechFreedom sponsored a webinar to discuss whether the FTC has authority to issue unfair methods of competition rules. To further the discussion on this important issue, we are re-posting that discussion as an episode.
Prof. Thomas W. Merrill Bio Page
Prof. Justin (Gus) Hurwitz Bio Page
Original Program for the Event
TechFreedom: Comments on the Proposed Ban on Non-Compete Agreements
TechFreedom: The Constitutional Revolution That Wasn’t: Why the FTC Isn’t a Second National Legislature
Prof. Justin (Gus) Hurwitz: Chevron and the Limits of Administrative Antitrust
Maureen Ohlhausen: Pushing the Limits? A Primer on FTC Competition Rulemaking
Thomas Merrill: Agency Rules with the Force of Law: The Original Convention
Peter Wallison: Only the Supreme Court Can Effectively Restrain the Administrative State