The Federal Trade Commission has proposed banning all non-compete agreements in the United States. Non-competes are currently legal in at least some form in 47 states and are commonly used by employers. Yet the FTC — originally constituted to address individual cases of unfair competition — now claims authority to outlaw this frequently used employment term.
The FTC’s proposed rule, when finalized, will have the power of law. Of course, in America, it is Congress — the people’s representatives — that makes the law, not administrative agencies. So, one might assume that Congress specifically authorized the FTC to issue such a consequential rule. But that assumption would be wrong.
For decades, Congress has abdicated some of its power to unelected federal bureaucrats. And those bureaucrats have seized their opportunity and asserted authority over nearly every facet of American life, based on flimsy claims of statutory authority. This is no model for lawmaking.
Fortunately, in 2022, the Supreme Court reinvigorated a legal tool for ensuring that federal agencies are exercising their authority within congressionally prescribed limits: the Major Questions Doctrine. This doctrine is simply the commonsense proposition that Congress does not intend to authorize regulation of a question of economic or political significance if it has not done so in clear terms. And it is a critical tool in the ongoing dispute over the scope of agency rule-making power, which has reached a fever pitch in recent years.
Take, for example, the Department of Education’s recently rebuked attempt to erase more than half-a-trillion dollars in student loan debt based on a laughably pretextual reading of the 2003 HEROES Act. There was never a plausible argument that Congress gave the president the power to cancel student debt in a statute intended “to repay Americans who endured personal hardship in service to their country with protection against the distractions of administrative obligations arising from student loans.” And in Biden v. Nebraska, the Supreme Court — relying on the Major Questions Doctrine — reached the same conclusion.
The Major Questions Doctrine is not a recent innovation, as critics suggest. It was articulated by Justice Sandra Day O’Connor in a 2000 opinion explaining that when confronting extraordinary claims of rule-making power “[the Court] must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of [great] economic and political [importance] to an administrative agency.” Or as the Supreme Court put it in an 1897 case concerning our nation’s first modern regulatory agency (the Interstate Commerce Commission), it is proper to assume that Congress only delegates “power[s] of supreme delicacy and importance” through “clear and direct” language.
Remarkably, some commentators have argued that the Major Questions Doctrine represents a judicial power grab. But this Kafkaesque argument turns the idea of democratic accountability on its head. If we take seriously the notion that the government exists to serve the citizenry, then — in the words of the late Justice Antonin Scalia — we must approach an agency’s assertion of “extravagant statutory power over the national economy” with “skepticism.” To do otherwise would be to presume that federal agencies are handed autocratic powers based on tortured readings of ambiguous statutes. And that simply does not comport with the republican values undergirding our system of government.
Consider, once again, the FTC’s controversial proposal for a nationwide ban on non-compete agreements. The FTC’s proposal would upend the existing laws of 47 states and short-circuit legislation pending in Congress. Nonetheless, a triumvirate of unelected FTC commissioners claims to wield this power by stretching beyond recognition the language of the Federal Trade Commission Act. As a result, the FTC plans to imperiously override the judgment of state lawmakers and judges to unilaterally reorganize the employment relationships of one in five Americans without any involvement from Congress.
That is a “major question.”
The Major Questions Doctrine does not arrogate power to the Supreme Court at the expense of the other branches. On the contrary, it guarantees that the people’s representatives in Congress make the laws that we all live under. When unelected, unaccountable regulators claim more power than Congress gave them, it undermines our representative government. The Major Questions Doctrine is a commonsense bulwark for ensuring that the federal government is accountable to the American people.
This op-ed was originally published at The Messenger on July 2, 2023.