After the Civil War, Supreme Court Justice David Davis explicitly rejected the idea of an “emergency” constitution:
The Constitution of the United States is a law applicable to rulers and people, providing protection to all classes of men at all times and under all circumstances, in time of war and in peace. No doctrine ever invented by human wisdom has had more pernicious consequences than any of its provisions could be suspended in any great emergency of government.
Davis wrote the majority opinion Unilateral Milligan, a court freed a man sentenced to death for alleged disloyalty during the war. Judge Davis could have simply concluded that Miligian should have been tried in a civilian court rather than a military commission. Instead, he chose to strengthen an important part of our constitutional order: a government with limited and fixed powers.
Recent actions by the Federal Trade Commission (FTC) challenge this understanding. Chairwoman Lina Khan laid out several regulatory issues in dramatic terms, where someone faces an emergency and can’t wait for Congress to act. As her agency tackles the topic of non-compete agreements, Khan announced the proposal’s column title declare She argued that these agreements “stifle innovation” and suggested that the dynamism of the U.S. economy prompted the FTC to take an aggressive regulatory stance. This view may explain why the Federal Trade Commission (FTC) turned to “housekeeping regulations“A broad delegation of rule-making authority and reliance on that authority to No non-compete agreements.
Whatever the merits of this policy, our Constitution protects means, not ends. Judge Ada Brown of the U.S. District Court for the Northern District of Texas—the first judge to review the legality of the ban—came to a similar conclusion: “After reviewing the text, structure, and and after history, [FTC] The court held that the FTC had no authority to establish substantive rules through this method.
The price of a non-compete injunction is the expected path to constitutional compliance with legislation on issues of national consequence. A bipartisan bill When the FTC issued its rules, Congress was debating addressing many of the same issues. However, most FTC members ignore Congress’s legislative authority and insist on their own rules—enacted in a manner that is less transparent and representative than a bill that would pass through the legislative process.
This is not an isolated incident. The committee plans to propose a business surveillance rules in the near future. Few Americans would disagree FTC Conclusions “New rules are needed to protect the privacy and information of people in the commercial surveillance economy.” But that doesn’t mean these Americans want rules from an unrepresentative and largely unaccountable agency while Congress actively considers addressing issues like problem legislation. But this is exactly what Khan wanted: statement We may be living in “the most surveilled environment in human history,” she said, again speaking in broad, general language that makes the use of extraordinary executive powers easier.
A Recent blog posts News from the FTC’s Office of Technology suggests the commission may further squeeze Congress. This article analyzes the advantages and disadvantages of open source artificial intelligence models. While such an analysis may seem innocuous, it could muddy the regulatory waters for researchers and tie the administration to the position that Congress should figure it out on its own. This regulatory confusion undermines the authority of Congress and hinders legal clarity, predictability, and stability. But Kahn once again spoke the language of emergency, debate Failure to make the choice she preferred would “result in a huge loss to our privacy and security.”
The FTC does not have any emergency powers. Congressional inaction does not increase the FTC’s jurisdiction. Justice Department opposition does not excuse the FTC from trying new enforcement theories. Even economic turmoil does not change when and how the FTC carries out its limited responsibilities. Judge Davis’s call to respect the limited and fixed powers set out in the Constitution should be heard on Capitol Hill and in the halls of the administrative state—especially the Federal Trade Commission.
