Biden policy that would help one in five workers faces far-right legal attack

Washington, D.C. – Legal scholars are defending the Biden administration’s policy banning most non-compete clauses in worker contracts from far-right legal attacks, with a friend of the court brief submitted by Democracy Forward in federal district court in Texas. 

The Federal Trade Commission’s (FTC)  policy to ban non-competes, which would ensure roughly one in five American workers – more than 30 million people according to conservative estimates – are no longer bound by these restrictive clauses, is set to go into effect on September 4, 2024, but it faces legal challenges from special interest groups. 

“The extremists behind this dangerous challenge to the non-compete ban make a series of arguments that are fundamentally flawed, and the legal experts we represent make clear how outlandish those challenges to this important protection for workers are,” said Mark Samburg, Senior Counsel for Democracy Forward. “Non-compete clauses have kept millions of people trapped in jobs they may not want, and Democracy Forward is committed to defending workers’ hard-fought freedoms.”

On April 23, 2024, the FTC voted to finalize a new rule seeking to prohibit employers from enforcing non-compete clauses against workers, which can prevent employees from leaving their jobs for a better, higher-paying offer in the same industry. The rule faced an almost immediate challenge from special interests, with a lawsuit filed within hours of the rule’s publication. In the lawsuit, special interests try to apply the “major questions doctrine” as a way to attack the policy, continuing a pattern of far-right interests seeking to expand this doctrine to apply to any policy they want to see struck down. 

In their brief, leading law professors who teach and write in the field of administrative law argue that the FTC’s new rule “will greatly aid the mobility of the American labor force and incentivize employers to offer competitive compensation.” Further, the experts write in their brief how the “major questions doctrine” should not apply: “While the Rule and its impacts will be life-changing for individual workers, it is decidedly not a transformative or unheralded exercise of the Commission’s authority. To the contrary, the Rule is of a piece with long-established Commission authorities; accordingly, it does not implicate the major questions doctrine.”

The legal experts, including William Araiza, the Stanley A. August Professor of Law at Brooklyn Law School, Peter Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University, Moritz College of Law, and Jeffrey Lubbers, Professor of Practice in Administrative Law at American University, Washington College of Law are being represented in the filing by Democracy Forward Senior Counsel Mark Samburg. 

For more information about Democracy Forward, please visit

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