by Lisa Tarasyuk*

The Federal Trade Commission is vested with the power to make rules with legislative effect when regulating unfair methods of competition. That includes the power to issue a Non-Compete Clause Rule, a rule that voids non-compete clauses nationally. The Commission’s authority to issue such a rule is conveyed by the plain text of 15 U.S.C. §§ 45(a)(2) and 46(g) and confirmed by the Federal Trade Commission Act’s scheme and subsequent amendments. The rule does not offend the Major Questions Doctrine because the authorizing provisions are clear, as is Congress’s intent for the Commission to intervene in trade. The Commission is thus vested with the authority to issue substantive rules when regulating unfair methods of competition, including through the Non-Compete Clause Rule.

Pursuant to the Federal Trade Commission Act (“FTC Act”), the Federal Trade Commission (“FTC”) issued a Non-Compete Clause Rule in May of 2024.1 This rule declared non-compete agreements unfair methods of competition and made it a violation of 15 U.S.C. § 45 for individuals to enter into such agreements.2 For existing non-compete agreements, this rule invalidated all clauses except those binding senior executives.3 As legal authority for this rule, the FTC relied upon both the purposes of the FTC Act and the express language contained in 15 U.S.C. §§ 45(a)(2) and 46(g).4

Before the rule went into effect on September 4, 2024, it was challenged as an unauthorized application of the FTC’s powers.5 In both Ryan, LLC v. FTC and Properties of the Villages, Inc v. FTC, plaintiffs contended that the FTC lacked authority to issue any substantive rules regulating unfair methods of competition.6 In Ryan, the court determined that the FTC did not have substantive rulemaking authority with respect to unfair methods of competition because the proffered authorizing provision was not an express grant of such authority.7 Instead, the court found that the provision is a “housekeeping statute” without substantive authority, as it has no penalty provision, is located amongst investigatory powers, and appears as the secondary clause of a subsection.8 In Properties of the Villages, the court concluded that the FTC did have substantive rulemaking authority, but nonetheless enjoined the rule as unauthorized under the Major Questions Doctrine.9 Subsequently, both courts issued nationwide injunctions.10 This Contribution argues that both courts ultimately reached the wrong conclusion—the FTC has the authority to promulgate such rules in the first instance, and when the FTC promulgated the Non-Compete Clause Rule, it did not run afoul of the Major Questions Doctrine.

The Ryan court’s erroneous analysis departs from Supreme Court precedent. First, the court interpreted § 46(g) in isolation, finding that § 46(g) does not confer the necessary authority to the FTC because it reads “to make rules and regulations for the purposes of carrying out the provisions of this subchapter” rather than “for the purposes of regulating unfair methods of competition.”11 However, the court’s narrow reading of § 46(g) ignores the Supreme Court’s holding in United States v. Morton Salt Co.:§ 46 is to be read with § 45, which declares unfair methods of competition unlawful.12 Thus, Morton Salt Co. makes clear that the powers granted by § 46 are to be understood in the context of the FTC’s purpose laid out in § 45. Second, the Ryan court’s conclusion that § 46(g) is merely a housekeeping statute13 imposes a penalty provision requirement that the Supreme Court does not apply when analyzing rulemaking authority.14 For example, in CFPB v. Community Financial Services Association of America, the Supreme Court identified the Consumer Finance Protection Bureau’s substantive rulemaking authority in 12 U.S.C. § 5531(a), a provision which contains no references to penalties, and conducted no analysis based on the absence of penalty provisions.15 Despite invalidating § 46(g)’s plain meaning purely based on its location within the statutory scheme, the Ryan court still maintained that the FTC retains “some authority” to promulgate rules under § 46(g).16 Yet the court failed to offer an explanation as to why some rules placed in the investigatory section of § 45(b) would carry the force of law, and others would not.17 The Ryan court rested its decision on these flawed premises in the face of the clear text of 15 U.S.C. §§ 45(a)(2) and 46(g).

When Congress enacted 15 U.S.C. § 45(a)(2) of the FTC Act, it stated that “[t]he Commission is hereby empowered and directed to prevent . . . corporations . . . from using unfair methods of competition.”18 While an agency may fulfill Congress’s directive through adjudication, substantive rulemaking, or both, the plain meaning of the term “prevent” necessarily confers substantive rulemaking power. “Prevent” means “to act ahead of” or “to keep from happening or existing especially by precautionary measures.”19 Thus, “prevent” confers authority to proactively regulate anticipated future conduct. That construction was affirmed in FTC v. Motion Picture Advertising Service Co., where the Supreme Court made clear that “prevent,” as used in the FTC Act, vests the FTC with the power to take forward-looking agency action.20 Therefore, because rules are generalized and prospective, whereas adjudications are specific and retrospective,21 “prevent” must confer substantive rulemaking authority to retain its forward-looking meaning. Thus, Congress’s use of “prevent” in § 45(a) delegates to the FTC substantive rulemaking authority to anticipate and halt practices that may amount to unfair methods of competition in the future.22

Furthermore, to read § 45(a) of the FTC Act as allowing prevention only by adjudication, as the Ryan court mistakenly did, ignores the statute’s adjudicatory provisions.23 For one, 15 U.S.C. § 45(b), which governs adjudications, indicates that adjudication is only to be used “if it shall appear to the Commission that a proceeding by it . . . would be to the interest of the public.”24 This clause shows that Congress intended the FTC to exercise adjudicatory authority as a tool to prevent present violations, where a proceeding is necessary to stop conduct immediately harmful to the public. As this clause is conditional, Congress did not intend for the FTC to rely solely on adjudication to prevent unfair methods of competition.

Any doubt as to the scope of authority granted by the term “prevent” is belied by an additional direct source of the FTC’s authority to make substantive rules. In 15 U.S.C. § 46, Congress outlined “[a]dditional powers of Commission,”25 explicitly granting the FTC the power to “[f]rom time to time classify corporations and . . . make rules and regulations for the purpose of carrying out the provisions of this subchapter.”26 As noted in Morton Salt Co., § 46 is to be read in concert with § 45 “as an integrated whole.”27 Accordingly, when read together, the two sections confer substantive rulemaking authority to regulate unfair methods of competition upon the FTC.

First, because there is no ambiguity in the term “rules,” it adopts its plain meaning and no further construction is warranted.28 “Rules” should not be given a qualified meaning where Congress has left it unqualified.29 Thus, as “rules” encompasses both procedural rules and substantive rules with legislative effect,30 it authorizes rules like the Non-Compete Clause Rule.

But even assuming the term “rules” is ambiguous, statutory construction arrives at the same conclusion. There are three possible interpretations of § 46(g)’s use of “rules and regulations.” Either it refers to procedural rules only, substantive rules only, or both. In the context of the FTC Act and the FTC’s past regulatory actions, it is clear that § 46(g)’s “rules and regulations” refers to both. First, nowhere in the FTC Act is there any indication that the FTC’s rulemaking authority is to be cabined to procedural authority or substantive authority only.31 Second, if Congress wanted to limit “rules” to procedural rules, it would have done so explicitly.32 As the Supreme Court confirmed in Cuozzo Speed Technologies v. Commerce for Intellectual Property, without further limiting language in a statute or scheme, the term “rules” cannot, on its face, be limited to procedural rules.33 Third and most importantly, the FTC has exercised its rulemaking authority under this provision in the past, issuing some 26 substantive rules under § 46(g), none of which have been invalidated for lack of authority.34 Thus, it is manifestly against the statute’s plain text and Congress’s intent to interpret “rules” to mean only “procedural rules” absent any indication to the contrary.35 Finally, the agency’s role, whether regulatory or advisory, aids in understanding whether its rules carry the force of law.36 Because the FTC is a regulatory agency,37 it follows that its authority would include the power to promulgate rules with legislative effect.

The Supreme Court has previously determined that Congress’s use of the term “rules” when delegating authority to agencies includes the substantive rulemaking power. For example, 47 U.S.C. § 303(r) grants the Federal Communications Commission (“FCC”) the power “to make such rules and regulations,” and the Supreme Court in National Broadcast Co. v. United States understood “rules” to include substantive rules.38 Similarly, in American Hospital Association v. NLRB, the Court found that 29 U.S.C. § 156, which reads, “the Board shall have authority from time to time to make . . . such rules and regulations as may be necessary,” grants the National Labor Relations Board substantive rulemaking authority.39

It follows that § 46(g) delegates to the FTC generalized rulemaking authority—the power to promulgate substantive and procedural rules. This is why the statute consists of express conferrals of discretion. The phrase “from time to time” indicates Congress’s anticipation that rulemaking authority should be used sparingly, subject to the judgment of the Commission. It also indicates that such rules are to be promulgated “for the purposes of this section,” granting discretion to decide how to construct rules executing Congress’s directive to prevent unfair methods of competition. Such conferrals of discretion, which convey generalized rulemaking authority, fall within a class of delegations recognized by the Supreme Court in Loper Bright Enterprises v. Raimondo.40 There, the Court noted that “the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes.”41 For instance, 42 U.S.C. § 607(a) expressly confers discretion to the Secretary of Health to decide what qualifies as unemployment: “unemployment (as determined in accordance with standards prescribed by the Secretary).”42 The conferral can be equally forceful even when implicit: Section 17 of the Judiciary Act of 1789, gives courts the power “to make and establish all necessary rules.”43 Finally, such conferrals can occur by reference to the judgment of the agency or agency actor: 42 U.S.C. § 7412(n)(1)(A) authorizes the Environmental Protection Agency (“EPA”) to regulate power plants by way of substantive rules “if the Administrator finds such regulation is appropriate and necessary.”44 Lower courts have since applied Loper Bright to identify such grants as generalized rulemaking authority and find that they confer the power to promulgate rules carrying the force of law.45

Section 46(g) also grants the FTC the power to “fill up the details,” that is, the discretion to decide whether to employ rulemaking or adjudication to enforce § 45.46 This is a verbatim conferral of the authority intended by Congress for the FTC. In fact, Representative Harry Covington of Maryland, the author of the FTC Act, discussed at length the importance of the FTC’s “power to fill up in the details” in his remarks clarifying the scope of the Commission’s authority.47 That § 46(g) is a generalized rulemaking provision is further confirmed by the fact that Congress declined to define “unfair methods of competition” and removed any limits as to the types of industries the FTC would have jurisdiction over.48 Thus, under Loper Bright, § 46(g) functions as a generalized rulemaking provision that authorizes the promulgation of substantive rules, including the Non-Compete Clause Rule.

Amendments to the FTC Act further reinforce that § 46(g) confers substantive rulemaking authority. To start, because the FTC Act was enacted in 1914, well before the Administrative Procedure Act in 1942, there is no reason to believe Congress intended to confer authority that was solely procedural.49 Additionally, when Congress passed the Magnussen-Moss Warranty Act in 1975, it added 15 U.S.C. § 57a(a)(2), which outlined the procedures the FTC must follow to enact substantive rules regulating unfair deceptive acts or practices, as distinct from unfair methods of competition.50 There, Congress wrote:

The Commission shall have no authority under this subchapter, other than its authority under this section, to prescribe any rule with respect to unfair or deceptive acts or practices in or affecting commerce (within the meaning of section 45(a)(1) of this title). The preceding sentence shall not affect any authority of the Commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition in or affecting commerce.51

By indicating that the Commission’s authority to prescribe rules for unfair methods of competition “includ[es] interpretive rules,” the enactment confirms that Congress viewed “rules” within § 46(g) to include both substantive and interpretive rules. In issuing this amendment, Congress crystalized the FTC’s substantive rulemaking authority with respect to unfair methods of competition.

When Congress amended the FTC Act in 1980, under the FTC Improvements Act, it again confirmed that “rules” is to be understood as including substantive rules.52 There, it enacted requirements for how substantive rules were to be promulgated:

“[R]ule’” means any rule promulgated by the Commission under section 46 or section 57a of this title, except that such term does not include interpretive rules, rules involving Commission management or personnel, general statements of policy, or rules relating to Commission organization, procedure, or practice.53

By specifying that the requirements discussed do not apply to interpretive rules, Congress indicated they do apply to substantive rules, demonstrating that § 46(g) cannot be limited solely to procedural rules.

Thus, the principal avenues for reviewing the FTC’s exercise of its inherent substantive authority are, as for most agencies, cabined to challenges under the Administrative Procedure Act and the Major Questions Doctrine. Under the Administrative Procedure Act, agency action is set aside if it is “arbitrary, capricious, [or] an abuse of discretion.”54 Under the Major Questions Doctrine, agency action is set aside if it carries “economic and political significance” and is an exercise beyond the scope the authority delegated by Congress.55 The Ryan court invalidated the Non-Compete Clause Rule on the grounds that it was “unreasonably overbroad without a reasonable explanation.”56 This conclusory statement, in the face of over one-hundred pages published by the FTC explaining the rationale behind the rule,57 is unlikely to prevail in future litigation of the Non-Compete Clause Rule.58 Certainly, were the FTC to make a rule with no explanation, it would be facially arbitrary. However, the FTC has not proceeded in such a manner with the Non-Compete Clause Rule.

As for the Major Questions Doctrine, it is a non-starter when applied to the FTC’s § 46(g) authority.59 The court in Properties of the Villages found, based on flawed reasoning, it was substantially likely that the plaintiffs would prevail in showing that the Non-Compete Clause Rule would present a Major Question.60 The court determined that the rule carried economic and political significance because one-fifth of workers would be subject to the rule, employers would be expected to pay $400–488 billion dollars over ten years, and states have debated and banned non-competes.61 Having found that the rule raises a Major Question, the court turned to whether the delegation of authority was sufficiently explicit to withstand the challenge. The court held it was not, reasoning that § 45 did not explicitly grant rulemaking authority, § 46(g) primarily deals with investigatory powers, and the Non-Compete Clause Rule demonstrated a “new assertion of expansive authority in the long-standing but relatively dormant Section [4]6(g).”62 The court arrived at the wrong conclusion by applying a contradictory and improper analysis under the Major Questions Doctrine. It first determined, under statutory construction, that the FTC had substantive rulemaking authority. Then, after finding a Major Question had been raised, it conducted further statutory construction to conclude § 46(g) is “not the behemoth the Commission says it is,” therefore invalidating the rule because Congress was not sufficiently explicit in the scheme and the action was novel. But by returning to construction again, the court misapplied the law. The proper analysis should have been whether there was “clear congressional authorization,” which requires looking to the scheme as a whole and congressional intent.63 What the court did instead was employ an excellent formula for invalidating any administrative rule: force the challenged agency action through the Major Questions goal post where on the other side, statutory silence can be used to invalidate faithful and novel exercises of the authority conferred.64

As Justice Barrett cautioned in Biden v. Nebraska, a case that invalidated agency action under the Major Questions Doctrine, overapplication of the Doctrine runs the risk of turning it into a “clarity tax” allowing courts to ignore Congress rather than abiding by its intent.65 The way that the Properties of the Villages court dealt with § 46(g) demonstrates just that: torturing an ambiguity out of the term “rules” only after finding that a Major Question has been raised. This is particularly concerning for the term “rules,” which is used by Congress in virtually all statutes, carries a straightforward and plain meaning, and within the FTC Act specifically, has had its substantive effect ratified in subsequent amendments. Any claim of ambiguity in the FTC’s authority must therefore lie in the term “unfair methods of competition,” which Congress chose to leave undefined. But that would not be a question of the type of rulemaking authority the FTC has, rather, it would be a question of proper exercise of that authority. In other words, a Major Questions analysis of an FTC rule should focus on whether the FTC has the power to promulgate a specific rule based on its nature and scope. But as the Non-Compete Clause Rule does not raise a Major Question in the first instance, it was clearly a proper exercise of § 46(g) authority.

All of the Major Questions factors support the conclusion that most FTC rules regulating unfair methods of competition, including the Non-Compete Clause Rule, are proper exercises of the FTC’s § 46(g) authority. The first Major Questions factor—vast economic consequence—leans in favor of the FTC because Congress defined § 46(g) rules in economic terms, indicating that such rules are those with at least a $100 million annual effect.66 Thus, notwithstanding the effect pointed out by the Properties of the Villages court, the Commission was explicitly directed by Congress to take actions with economic significance. Importantly, Congress chose not to proscribe such authority with an upper-bound dollar amount.67 As for political consequences, there must be some indication that the issue is in fact a political controversy within the attention of Congress—just as regulation of tobacco products,68 mask mandates,69 cancellation of student loans,70 and an eviction moratorium71 were. It is not enough to cite state preemption as a source of political significance,72 because then virtually every federal regulation that preempts state laws would raise a Major Question, which is certainly not the way the Supreme Court has ever assessed that factor. Furthermore, because the Supreme Court tends to assess economic and political consequences in tandem in Major Questions cases, the doctrine is inapposite when it comes to FTC action. This is because, unlike agencies such as Food and Drug Administration, Occupational Health and Safety Administration, the Department of Education, and the Centers for Disease Control and Prevention, the FTC was created for the express purpose of regulating the economy to protect commerce and trade.73 Of course, it cannot be said that all FTC action will survive the Major Questions Doctrine, but it is difficult to imagine how the doctrine, already limited to application only in the most “extraordinary” cases,74 would apply to action by an economy-regulating agency where its action does in fact regulate the economy.

The FTC has possessed substantive rulemaking authority for over a century. In step with its discretion to decide how to regulate, the FTC proceeds by adjudication or, “from time to time,” opts for rules with legislative effect. In the case of unfair trade practices that are widespread and adopted universally in the natural course of competition, the FTC acts exactly as intended when it decides to regulate through substantive rulemaking. Congressional authorization for most agencies cannot realistically proceed by way of exhaustive laundry lists,75 and trade practices are uniquely situated to warrant expert agency intervention. Without its § 46(g) generalized rulemaking authority, the FTC would never be able to fulfill its congressional directive of protecting competition. Accordingly, the Non-Compete Clause Rule was within the FTC’s authority and the nationwide injunction preventing its enforcement should be lifted.

* Lisa Tarasyuk is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the problem from the 2025 Robert F. Wagner National Labor and Employment Law Moot Court Competition hosted by New York Law School. One of the questions presented was whether the FTC exceeded its authority in promulgating the Non-Compete Clause Rule.

1. 16 C.F.R. § 910.

2. Id. at § 910.2(a).

3. Id.

4. Non-Compete Clause Rule, 89 Fed. Reg. 38349 (May 7, 2024) (to be codified at 16 C.F.R. pt. 910).

5. On September 5, 2025, the FTC filed to accede to vacatur of the Non-Compete Clause Rule.

6. Ryan, LLC v. FTC, 746 F. Supp. 3d 369, 382–83 (N.D. Tex. 2024); Props. of the Villages, Inc. v. FTC, No. 24-CV-316, 2024 WL 3870380, at *2 (M.D. Fla. Aug. 15, 2025).

7. Ryan, LLC, 746 F. Supp. 3d at 383–85.

8. Id.

9. Props. of the Villages, 2024 WL 3870380, at *8–9.

10. Ryan, LLC, 746 F. Supp. 3d at 374; Props. of the Villages, 2024 WL 3870380, at *2. Because the rule was enjoined nationally under the Administrative Procedure Act, the nationwide injunction remains undisturbed under CASA. Trump v. CASA, Inc., 606 U.S. 831, 847 & n.10 (“Nothing we say today resolves the distinct question whether the Administrative Procedure Act authorizes federal courts to vacate federal agency action.”).

11. 15 U.S.C. § 46(g) (emphasis added); Ryan, LLC, 746 F. Supp. 3d at 383.

12. United States v. Morton Salt Co., 338 U.S. 632, 650 (1950).

13. A “housekeeping statute” is where the statute refers to only rules of procedure as opposed to substantive rules. Ryan, LLC, 746 F. Supp. 3d at 384.

14. Id.

15. CFPB v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601 U.S. 416, 422 (2024).

16. Ryan, LLC, 746 F. Supp. 3d at 385.

17. Id.

18. 15 U.S.C. § 45(a)(2) (emphasis added).

19.Webster’s Third New International Dictionary 1798 (1961).

20. FTC v. Motion Picture Advert. Serv. Co., 344 U.S. 392, 394–95 (1953) (noting that the FTC Act was “designed to supplement and bolster the Sherman Act and the Clayton Act . . . to stop in their incipiency acts and practices which, when full blown, would violate those Acts”) (emphasis added); see also FTC v. The Ruberoid Co., 343 U.S. 470, 473 (1952) (noting that adjudicatory orders imposed by the FTC, must be able to “prevent illegal practices in the future.”).

21. Safari Club Int. v. Zinke, 878 F.3d 316, 333 (D.C. Cir. 2017) (“rules generally only have ‘future effect’ while adjudications immediately bind parties by retroactively applying law to their past actions.”); Abraham Lincoln Mem’l Hosp. v. Sebelius, 698 F.3d 536, 559 (“Rulemaking, in contrast, is prospective”).

22. ATS Tree Servs., LLC v. FTC, No. 24-CV-1743, 2024 WL 3511630, at *4 (E.D. Pa. July 23, 2024) (“Section 5 . . . directs the Commission to ‘prevent’ anticipated threats to competitive conditions, [and] the inquiry does not focus on ‘whether the conduct directly caused actual harm,’ but rather, whether the conduct ‘has a tendency to generate negative consequences’ when ‘examined in the aggregate’”) (emphasis in original); 51 Cong. Rec. 14931 (1914) (statement of Rep. Harry Covington) (“We are seeking here . . . to deal as we ought to deal, with those practices of unfair trade in their incipient stages which if left untrammeled and uncontrolled become the acts which constitute in their culmination restraint of trade.”).

23. Ryan, LLC, 746 F. Supp. 3d at 383 (“Section [4]5 creates a comprehensive scheme to prevent unfair methods of competition, while Section [4]6 enumerates additional powers that generally aid in the administration of that adjudication-focused scheme.”).

24. 15 U.S.C. § 45(b).

25. 15 U.S.C. § 46.

26. 15 U.S.C. § 46(g).

27. United States v. Morton Salt Co., 338 U.S. 632, 650 (1950).

28. Barnhart v. Sigman Coal Co., 534 U.S. 438, 450 (2002) (where “statutory language is unambiguous and ‘the statutory scheme is coherent and consistent’” no further construction is warranted) (quoting Robinson v. Shell Oil. Co., 519 U.S. 337, 340 (1997)); Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (noting that plain statutory language must be enforced to its terms).

29. Millbrook v. United States, 569 U.S. 50, 56–7 (2013) (declining to read in qualifiers to understand the term “acts or omissions” as it is used in the Federal Tort Claims Act).

30. Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672, 677 (D.C. Cir. 1973) (declining to apply a limiting construction to “rules and regulations” in § 46(g)); Seila Law LLC v. CFPB, 591 U.S. 197, 286 n.10 (2020) (Kagan, J., concurring). (“[T]he FTC has always had statutory rulemaking authority, even though (like several other agencies) it relied on adjudications until the 1960s.”).

31. See generally, §§ 15 U.S.C. 41–58.

32. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 227 (rejecting any attempt to create ambiguity where there is none because Congress, if it wanted to limit the reach of the statute, could have easily written in a qualifier).

33. Cuozzo Speed Techs. v. Commerce for Intell. Prop., 579 U.S. 261, 277 (2016) (a grant of authority to make rules would be limited to procedural rules if it was followed by language like “rules which . . . shall govern . . . proceedings in this office.”).

34. See Non-Compete Clause Rule, 89 Fed. Reg. 38349–50 (May 7, 2024) (listing rules promogulated under § 46(g)).

35. See Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019) (discussing how statutory interpretation requires “yield[ing] [to] a clear answer” once a statute’s ordinary meaning and structure have been examined).

36. Marin Audubon Soc’y v. FAA, 121 F.4th 902, 912 (D.C. Cir. 2024).

37. Humphrey’s Ex’r v. United States, 295 U.S. 602, 628 (1935) (“The Federal Trade Commission is an administrative body . . . under section [4]6, in aid of legislative power, it acts as a legislative agency. Under section [4]7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary.”); FTC v. Flotill Prods., Inc., 389 U.S. 179, 180 n.1 (1967) (“The FTC is one of the oldest federal regulatory agencies.”).

38. Nat’l Broad. Co. v. United States, 319 U.S. 190, 217 (1943) (noting the comprehensive powers endowed to the FCC by Congress).

39. Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 609–10 (1991) (“This grant was unquestionably sufficient to authorize the rule at issue in this case unless limited by some other provision in the Act.”).

40. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024).

41. Id.

42. 42 U.S.C. § 607(a); Batterton v. Francis, 432 U.S. 416, 425 (1977) (noting such a conferral gives the Secretary the power to adopt regulations with legislative effect).

43. Wayman v. Southard, 23 U.S. 1, 42–43 (1825) (noting that such a delegation of legislative authority by the legislature is proper because the authority is not “exclusively legislative,” notwithstanding the fact that it carries the force of law).

44. Loper Bright, 609 U.S. at 395 n.6.

45. Schaffner v. Monsanto Corp., 113 F.4th 364, 382 n.9 (3d Cir. 2024) (noting the Federal Insecticide, Fungal, and Rodent Act authorizes the EPA administrator “to prescribe regulations to carry out the provisions” of the statute, and this includes substantive rules); SoftView LLC v. Apple Inc., 108 F.4th 1366, 1372 (Fed. Cir. 2024) (holding 35 U.S.C. § 316(a)(4), which authorizes the director of the Patent and Trade Office to “prescribe regulations” governing review of proceedings, is a conferral of substantive authority).

46. Loper Bright, 609 U.S. at 395 (“some statutes ‘expressly delegate[ ]’ to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme”) (citations omitted).

47. 51 Cong. Rec. 14930–31 (1914) (statement of Rep. Harry Covington) (discussing that the “power to fill up the details” as noted in United States v. Grimaud, 220 U.S. 506 (1911), is not a conferral of legislative authority that would offend the Constitution, but instead an exercise of administrative power where “the rule of law which the trade commission will administer is the rule declaring unfair competition to be unlawful.”).

48. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 239–40 (1972) (noting that Congress had considered the ambiguity of the phrase “unfair methods of competition” and rejected the notion that it avoided such precision because “there were too many unfair practices to define”) (citations and quotations omitted).

49. The APA was the first statute to outline and distinguish between the two classes of rules, as those with binding effect and those that are purely procedural. Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979) (“The central distinction among agency regulations found in the APA is that between ‘substantive rules’ on the one hand and ‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” on the other.’”).

50. 15 U.S.C. § 57a(a)(1)–(2); 15 U.S.C. § 45(a)(2).

51. 15 U.S.C. §57a(a)(2) (emphasis added).

52. 15 U.S.C. §57b–3(a)(1).

53. Id.

54. 5 U.S.C. § 706(2)(A).

55. West Virginia v. EPA, 597 U.S. 697, 721 (2022).

56. Ryan, LLC v. FTC, 746 F. Supp. 3d 369, 388 (N.D. Tex. 2024).

57. Non-Compete Clause Rule, 89 Fed. Reg. 38342-505 (May 7, 2024) (to be codified at 16 C.F.R. pt. 910).

58. Consider that in the only other two cases where the Non-Compete Clause Rule has been addressed, the plaintiffs withdrew their claim or did not allege that the rule was “arbitrary and capricious.” Pls.’ Mem. In Supp. re Mot. for Prelim. Inj., ATS Tree Servs., LLC v. FTC, No. 24-CV-1743, 2024 WL 3511630, at *12 & n.15 (E.D. Pa. July 23, 2024), Dkt. No. 11; Compl., Props. of the Villages Inc. v. FTC, No. 24-CV-316, 2024 WL 3870380, at *2 (M.D. Fla. Aug. 15, 2025), Dkt. No. 1.

59. Although the Ryan court did not rely on the Major Questions Doctrine, the court in Properties of the Villages did. See Ryan, LLC, 746 F. Supp. 3d at 389; see Props. of the Villages, 2024 WL 3870380, at *2.

60. Props. of the Villages, 2024 WL 3870380, at *8.

61. Id.

62. Id. at *8–9.

63. Id. at *5, 7–9. In Major Questions cases, once a Major Question has been identified, courts do not resort back to statutory construction but instead examine whether “clear congressional authorization” for the agency action has been given. West Virginia v. EPA, 597 U.S. 697, 723 (2022). This normally involves a combination of examining the statutory text as well as the object of the regulation, in other words, what power the statute was “designed to grant.” Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014). This requires considering the purpose of the regulation and how it fits into the scheme, not just looking back to the text to see if the words lay out the challenged delegation, which in almost every case they will not.

64. See Bob Jones Univ. v. United States, 461 U.S. 574, 597 (1983) (“Since Congress cannot be expected to anticipate every conceivable problem that can arise or to carry out day-to-day oversight, it relies on the administrators and on the courts to implement the legislative will.”).

65. Biden v. Nebraska, 600 U.S. 477, 510 (2023) (Barrett, J., concurring) (“[T]his ‘clear statement’ version of the major questions doctrine ‘loads the dice’ so that a plausible anti-delegation interpretation wins even if the agency’s interpretation is better.”).

66. 15 U.S.C. § 57b–3(a)(1).

67. See id.

68. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 147 (2000) (“Given the economic and political significance of the tobacco industry at the time, it is extremely unlikely that Congress could have intended to place tobacco within the ambit of the FDCA absent any discussion of the matter.”).

69. NFIB v. OSHA, 595 U.S. 109, 117 (2022) (“The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing . . . This is . . . a significant encroachment into the lives—and health—of a vast number of employees.”) (citations omitted).

70. Biden, 600 U.S. at 502 (“The economic and political significance of the Secretary’s action is staggering by any measure . . . . Practically every student borrower benefits . . . the program will cost taxpayers between $469 billion and $519 billion”) (citations and quotations omitted).

71. Alabama Ass’n of Realtors v. HHS, 594 U.S. 758, 764 (2021) (“At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium . . . . While the parties dispute the financial burden on landlords, Congress has provided nearly $50 billion in emergency rental assistance—a reasonable proxy of the moratorium’s economic impact.”).

72. Cf. Props. of the Villages, 2024 WL 3870380, at *7.

73. FTC v. Cement Inst., 333 U.S. 683, 693 (1948) (noting that the legislative history of the FTC Act demonstrates “an abiding purpose to vest” the Commission with the power “to hit at every trade practice, then existing or thereafter contrived.”).

74. West Virginia, 597 U.S. at 723–24; Brown & Williamson, 529 U.S. at 159 (“In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.”).

75. See H.R. Rep. No. 63-533, at 23–25 (1914) (where Congress identified clear examples of unfair competition, while still recognizing that unfair methods are unenumerable and forever multiplying); Yates v. United States, 574 U.S. 528, 555–56 (2015) (Kagan, J., dissenting) (noting that the use of a list of verbs with reference to § 1519’s “any tangible object” indicates “Congress wrote a statute with a wide scope.”); Carlson v. Landon, 342 U.S. 524, 542–43 (1952) (“Congress can only legislate so far as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose. Congress need not make specific standards for each subsidiary executive action in carrying out a policy.”).