Millions of American workers are subject to noncompete agreements, which can prevent workers from changing jobs or starting new businesses. In 2024, the Federal Trade Commission (FTC) issued a rule making most noncompete agreements unenforceable. A group of realtors who had formerly worked at The Villages, a retirement community in Florida, challenged a two-year noncompete agreement that would have prohibited them from working at another agency in the same region. The Properties of the Villages, Inc. then sued the FTC to block the enforcement of its rule banning noncompetes. The District Court for the Middle District of Florida issued a preliminary injunction prohibiting application of the FTC’s rule to The Villages, relying on the “major questions doctrine.” The FTC appealed to the United States Court of Appeals for the Eleventh Circuit, and in November 2024, CAC filed an amicus brief in support of the FTC. Our brief made three main points. 

First, we explained that under Supreme Court precedent, the major questions doctrine applies only in “extraordinary” cases, where an agency’s assertion of breathtaking new power reflects a dubious effort to transform the fundamental nature of its authority. Supreme Court decisions have consistently demonstrated that more is needed to implicate the doctrine than economic and political significance alone; other factors must indicate that the agency is subverting congressional intent by seeking “an unheralded power representing a transformative expansion in its regulatory authority.” 

Second, we showed that the requirements for applying the major questions doctrine were not satisfied in this case. Among other things, issuing rules like the FTC’s prohibition on noncompetes is not unprecedented and does not transform the authority Congress conferred on the FTC. Instead, the agency exercised the same power it has always held under the FTC Act: using its expertise to identify and prevent unfair methods of competition. 

Third, we argued that extending the major questions doctrine to cases like this would undermine traditional statutory interpretation and constitutional principles. We discussed how the major questions doctrine is in tension with textualism because it emphasizes pragmatic considerations outside the statutory text. We also explained that the Constitution’s original public meaning does not support the premise underlying the doctrine: the Founders had no qualms about directing the executive branch to handle major policy questions, and history does not suggest that Congress must speak in any particular manner to do so. Finally, overuse of the major questions doctrine would undermine the separation of powers and thrust the courts beyond their proper role in interpreting the law. 

Because the FTC’s noncompete rule did not meet the high standard the Supreme Court has prescribed for applying the major questions doctrine, and because applying the doctrine more widely would exacerbate its tensions with textualism, the Constitution’s original meaning, and the separation of powers, our brief urged the Eleventh Circuit to decline to apply the doctrine and to uphold the FTC’s rule. 

In September 2025, after a change in presidential administrations, the FTC moved to voluntarily dismiss its appeal and accede to the vacatur of the noncompete rule.