Former U.S. Labor Secretary Gene Scalia games out the future of the Federal Trade Commission’s (FTC) recently proposed rule that would ban the use of most noncompete clauses in today’s Wall Street Journal. He writes that:
The Federal Trade Commission’s ban on noncompete agreements may be the most audacious federal rule ever proposed. If finalized, it would outlaw terms in 30 million contracts and pre-empt laws in virtually every state. It would also, by the FTC’s own account, reduce capital investment, worker training and possibly job growth, while increasing the wage gap. The commission says the rule would deliver a meager 2.3% wage increase for hourly workers, versus a 9.4% increase for CEOs.
Three phases lie ahead for the proposal: rule-making, litigation and compliance. … The FTC is likely to finalize the rule within a year, to ensure the Biden administration can begin the task of defending it in the litigation phase. The proposal’s legal vulnerabilities are legion. …
Sketching the likely future of the proposed rule in this way is helpful. Most of those affected by this rule are unlikely to be familiar with the rulemaking process or the judicial process for reviewing agency rules; indeed, many are likely to hear coverage of the proposed rule and mistake it for a regulation that’s already in effect. The cost of that confusion is made clear by Scalia’s ultimate takeaway: that the courts are very likely to reject the rule (and perhaps the FTC’s authority to adopt these types of competition rules), but only after a protracted and lengthy judicial review process (including, quite possibly, a trip to the U.S. Supreme Court).
As Scalia explains, many employers will act upon this likely ill-fated rule out of fear or confusion, altering their employment contacts in ways that will be hard to later amend:
Unfortunately, some employers may now reduce the benefits they offer in exchange for noncompetes, for fear the rule may eventually render the agreement unenforceable. But because the FTC may change aspects of the rule—and because the courts are likely to invalidate it—American businesses don’t need to invest now in complying with this deeply flawed proposal.
This should raise serious concern about the FTC’s approach to this issue. It is very likely that the Commission is aware of the rocky shoals that lie ahead. But it is also likely that the Commission knows that its posturing will affect the conduct of the business community. It’s not much of a leap to conclude that the Commission—that is, its three-member majority—is using its rulemaking process, not its substantive legal authority, as a norm entrepreneur, to jawbone the business community and move the Overton window that frames discussion of noncompete clauses. I feel dirty writing a sentence as jargon-filled as that one, but no dirtier than the Commission should feel for abusing rulemaking procedures to achieve substantive ends beyond its legal authority.
This concern resembles an issue currently before the Supreme Court: Axon Enterprises v. FTC, another case that involves the FTC. Generally, agency actions cannot be challenged in federal court until the agency has finalized its action and affected parties have exhausted their appeals before the agency. Indeed, the statutes that govern some agencies (including the FTC) have provisions that have been interpreted as preventing challenges to the agency’s authority from being brought before a federal district court.
In Axon, the Supreme Court is considering whether a company subject to administrative proceedings before the Commission can challenge the constitutionality of those proceedings in district court prior to their completion. Oral arguments were heard this past November and, while reading tea leaves based upon oral arguments is a fraught endeavor, those arguments did not seem to go well for the FTC. It seems likely that the Court will allow firms to raise such challenges prior to final agency action in adjudication, precisely because not allowing them allows the Commission to cause non-redressable harms to the firms it investigates; several years of unconstitutional litigation can be devastating to a business.
The Axon case involves adjudication against a single firm, which raises some different issues from those raised when an agency is developing rules that will affect an entire industry. Most notably, constitutional Due Process protections are implicated when the government takes action against a single firm. It is unlikely that the outcome in Axon—even if as adverse to the FTC as foreseeably possible—would extend to allow firms to challenge an agency rulemaking process on the ground that it exceeds the agency’s statutory (not even constitutional) authority.
But the Commission should nonetheless take the concerns at issue in Axon to heart. If the Supreme Court rules against the Commission in Axon, it will be a strong signal that the Court has concerns about how the Commission is using the authority that Congress has given it. One could even say that it will be the latest in a series of such signals, given that the Court recently struck down the Commission’s Section 13(b) civil-penalty authority. As Scalia notes, the Commission is already pushing the outermost limits of its statutory authority with the rule that it has proposed. The extent of the coming judicial (or congressional) rebuke will be greatly expanded if the courts feel that the agency has abused the rulemaking process to achieve substantive goals that exceed that outermost limit.