On Thursday, in a 3-1 vote, the Federal Trade Commission proposed rulemaking to ban restrictive contracts used by employers to block workers from taking jobs at competitor shops or starting their own businesses. The sweeping new rule will impact the approximately 1 in 5 workers who are currently under the thumb of noncompete clauses. After a 60-day public comment period to hear from workers, industry, and outside groups, the commission will make a final ruling.

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With its demonstrated hostility to the administrative state, the Supreme Court’s conservative justices might use a similar claim to strike down the noncompete rule. Yet, FTC officials and outside anti-monopoly groups maintain that the noncompete ruling falls squarely within the agency’s authority.

“The FTC’s powers have been upheld again and again by past Supreme Courts so there’s clear precedent here,” said Katherine Van Dyck, senior legal counsel at the American Economic Liberties Project. The unfair methods of competition policy statement uses a mountain of legislative history and case law to show that Congress meant for the FTC to go beyond the existing antitrust laws, which “substitute the court in the place of Congress,” according to the FTC Act’s chief sponsor. The entire point of the FTC was to create an enforcement agency on a broad range of anti-competitive conduct, with the authority to make rules.

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