UNBIASED - August 21, 2024: Judge Blocks FTC's Ban on Non-Compete Agreements, RFK Jr.'s VP Discusses Dropping Out and Joining Trump, U.S. Has 818,000 Less Jobs Than We Thought, and More.

Episode Date: August 21, 2024

Welcome back to UNBIASED. In today's episode: Federal Judge Blocks FTC from Enforcing Ban on Non-Compete Agreements (0:07) More Context: RFK Jr.'s VP, Nicole Shanahan, Speaks About Staying in Race or Dropping Out and Joining Trump (3:33) U.S. Veteran Fled in January and is Now Fighting in the Russian Military (9:35) Job Growth in U.S. Much Weaker Than Initially Reported Per New Annual Revision (11:15) Quick Hitters: VP Harris Accepts Nomination, Airlines Acquisition One Step Closer to Approval, Fugitive on the Run for 68 Days Captured, NY Appeals Court to Hear Oral Arguments in Trump's Appeal (12:53) Critical Thinking Question: Should There Be Consequences for Interfering in Opposing Parties Political Campaigns? If So, To What Extent? (14:48) Support ‘UNBIASED’ on Patreon. Watch this episode on YouTube. Follow Jordan on Instagram and TikTok. All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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FTC's new ban on non-compete agreements from taking effect. Notably, this judge is not the only judge that's weighed in on this new rule at this point, so let's back up just a little bit. As we know, the Biden administration issued a final rule in May, which was set to take effect next month, that bans non-compete agreements in the workplace. The FTC commissioners voted to pass the rule because they said that the non-compete agreements are an unfair restraint on competition and, you know, they violate antitrust law and suppress workers' wages as well as workers' mobility. Following the issuance of that rule, multiple lawsuits were brought across the country. One in Florida, one in Texas, and one in Pennsylvania.

In July, a judge in Pennsylvania upheld the FTC's rule, finding that the FTC reasonably concluded that non-competes are rarely justified. Then last week, a judge in Florida ruled that the FTC's ban was likely invalid and prohibited a non-compete from applying to a real estate developer. But most recently, yesterday, a judge in Texas barred the FTC's ban from taking effect nationwide. The other two cases were different in that they were standalone cases. The Texas judge reasoned that the FTC doesn't have the authority to ban practices it deems to be unfair by adopting such broad rules, and that even if the FTC has the power to adopt such a rule, it had not justified banning all non-competes.

So to get a little legal on you, this is also known as being arbitrary and capricious. Essentially, under a federal law known as the Administrative Procedure Act, courts are instructed to invalidate federal agency actions that are arbitrary and capricious. An action is arbitrary and capricious when it's baseless or it lacks motive or reason. More specifically, what the law actually says is that an action is arbitrary and capricious if the agency, in this case the FTC, has one, relied on factors which Congress has not intended it to consider, two, entirely failed to consider an important aspect of the problem, three, offered an explanation for its decision that runs counter to the evidence before the agency,

or four, has offered an explanation so implausible that it could not be ascribed to a different view or product of the agency expertise. So the judge in Texas held that the FTC's ban on non-competes was not justified and therefore arbitrary and capricious and could not stand. Now, because this ruling is the first ruling to apply nationwide, what this means is that the FTC cannot enforce a blanket ban on non-competes, but non-competes can still be reviewed on a case-by-case basis. An FTC spokesperson did not say whether the agency would definitely be appealing, but said that it was highly considering it. So again, as of now, the ban on non-compete agreements cannot take effect and will not take effect next month

unless this ruling is overturned. Now moving on to an update or a little added context to yesterday's episode. So in yesterday's episode, I mentioned in the quick hitters that independent presidential candidate RFK Jr. and his running mate, Nicole Shanahan, are weighing their options as to where to take the campaign at this point. But I wanted to provide a little more context behind the statements that Shanahan made because there were a lot of headlines about this story coming out as of last night, specifically about Kennedy and Shanahan possibly endorsing Trump. So Nicole Shanahan, Kennedy's vice president pick, sat for an interview with the host of a podcast called Impact Theory. And during that interview, Shanahan was asked a whole bunch of questions, but the questions that are relevant

to this story are as follows. She was first asked about the rumors that RFK Jr. was in talks with the Harris and Trump campaigns, possible endorsements for both Harris and Trump, possible positions in either cabinet, and whether there was any truth to those rumors. She definitively answered no as to being in talks with Harris, endorsing Harris, or a cabinet position with Harris. She called those rumors fake news created by the mainstream media. But she said, with that being said, their campaign has offered to talk to everybody about their policies, about who's going to be in these other cabinets, and whether these other campaigns want to hear

about their policies. So they're open to talking to everyone. The host of the podcast then brings up some public concerns about Kennedy being a spoiler candidate and asked Shanahan what she thinks about that. And here's a snippet of what she said. And just for transparency sake, I am going to be cutting this clip to include the relevant portions of the story. So you'll hear right now about three and a half minutes of what Shanahan has to say. But I do have a longer 16 minute clip, as well as the full episode linked for you in the sources section if you want even more context. So here's the clip. When would you guys make that decision? There's obviously huge concerns that you guys are a spoiler candidate. And so I understand there'll be a public facing message, but I'm very curious how you guys think about that. We did not start this campaign.

I did not put in tens of millions of dollars to be a spoiler candidate. I put in tens of million dollars to win, to fix this country, to do the right thing. um i will say that clear choice this pack this dnc aligned pack that was created specifically to take us out has spent millions of dollars to take us out they have unfortunately turned us into a spoiler um and we don't want to be a spoiler we wanted wanted to win. We wanted a fair shot. The DNC made that impossible for us. They have banned us, shadow banned us, kept us off stages, manipulated polls, used lawfare against us, sued us in every possible state. They've even planted insiders into our campaign to disrupt it and to create actual legal issues for us. I mean, the extent by which the sabotage they've unleashed upon us, it's mind blowing. I mean, we're still learning new ways that they have sabotaged us. I really wanted a fair shot at this election. And I believed in the America that

I, a little girl, pledged allegiance to. And that is not where we are today. And it's not because of the Republican Party taking us out. It is exclusively because of the Democratic Party taking us out. And I am so disappointed I ever helped them. I am so disappointed that I helped Chuck Schumer in that Georgia runoff secure a majority. It's probably one of the biggest mistakes of my life. You know, given this, I think we are taking a very serious look at making sure that the people that have corrupted our fair and free democracy do not end up in office in November. It's hard. I mean, it's really hard, Tom, to say these words, because it's also acknowledging how bad things are. What my gut tells me right now is that we just have to keep

being honest. I got to just keep being honest. I got to keep focusing on what matters the most outside of party lines. I need to focus on a vision that goes beyond November. And if that means that we stay in and, you know, there's benefits to staying in. If we get over 5% of the vote, we actually establish ourselves as a party. So, you know, there's two options that we're looking at, and one is staying in, forming that new party, but we run the risk of a Kamala Harris and Waltz presidency because we draw votes from Trump or we draw join forces with Donald Trump. And, you know, we walk away from that and we explain to our base why we're making this decision. So that's a little bit of added context to the story. And now, you know, and in a more recent update to the story, as of today, Kennedy's campaign said Kennedy will, quote, address the nation live on Friday about the

present historical moment and his path forward, end quote. So we'll see what he has to say at that point and whether he addresses all of this news. In some other news, a former United States Air Force member who fled the United States in January and hasn't been seen since has resurfaced in a Russian propaganda video. In the video released by Russia's defense ministry, Wilmer Poyomota claims to be a recognizant drone operator fighting for Russian forces in a region of Ukraine. Poyomota, who's 28, was set to plead guilty to possessing explicit images of a 17-year-old girl, as well as fabricating military

documents. That guilty plea was supposed to happen in January, but he obviously never pled guilty and he left the country. His lawyer, John Cicilline, said Pueo Mota had previously mentioned joining the Russian army, and that Pueo Mota actually said the day before the plea hearing that he had other plans, aside from showing up to the plea hearing. Cicilline said Pueyomoto wanted a career in politics, but that the child pornography charge had ruined his life. Service records show that Pueyomoto was deployed to Afghanistan in 2015 when he was 19 and then later served with the Massachusetts Air National Guard as a security forces airman. In the Russian video, Pueyomota explains his reason for moving to Russia,

and it does not include that child pornography charge. He recounts his time as a city council member in Massachusetts, says that when he got involved in politics, he zoomed out and looked at politics on an international level, realized he needed to do something about it, so he headed to Russia in January, spent some time in Moscow, and then ultimately joined the Russian army. If you want to watch that video that features Poyomota, I do have it linked for you in the sources for this episode, which of course you can always find the link to in the episode description. In some economy-related news, job growth here in the United States over the past year was actually a lot weaker than previously estimated. So the Bureau of Labor

Statistics Preliminary Annual Benchmark Review of Employment Data suggests that there were 818,000 fewer jobs in March of this year than were initially reported. This is the largest downward revision since 2009. Note that this number doesn't reflect job losses, but rather that the job count was never as high as everyone thought. So what happens is every year, the Bureau of Labor Statistics, or the BLS, recalculates previously reported monthly employment estimates by comparing its statistical samples against actual administrative data from state unemployment systems. This is part of its annual benchmark process. This isn't abnormal. It happens every year. Sometimes it's a revision downward as it was this year. Other times it's a revision upward. The last time that we saw a record-breaking revision since 2009 was March 2019. So over the period March 2018 to March 2019, the BLS revised down its estimate

of total U.S. job creation by 501,000. At that time, it was the largest downward revision since 2009, but obviously this most recent downward revision that came out today broke that record. Just to put a number on 2009's downward revision, the total number of jobs in the economy was revised down in 2009 by 902,000. So almost a million and really not too far off from today's number. Now we can move on to quick hitters, starting with Vice President Harris officially accepting her Democratic presidential nomination last night via video, which was played at the DNC. While Harris became the party's official nominee earlier this month via a virtual roll call, the delegates held a ceremonial roll call at the DNC yesterday while Harris and Walls were campaigning in Milwaukee. And the Department of

Transportation said yesterday that it is reviewing Alaska Airlines' proposed acquisition of Hawaiian Airlines, which means that proposed acquisition passed the DOJ's review and is one step closer to approval. A man accused of murder who's been on the run for 68 days after escaping a Mississippi detention facility was captured today after barricading himself inside of a Chicago restaurant. Joshua Zimmerman was arrested last year in Mississippi on charges of murder, attempted murder, armed robbery, felon in possession of a firearm, and theft. Officials say now they are focused on extradition plans to get him back to Mississippi. And a New York appeals court will hear oral arguments on September 26th in Trump's appeal of the $454 million civil judgment issued against him by Judge Arthur Ngaran. Remember, this was the

case that was brought by New York Attorney General Letitia James, where the judge found that Trump and Trump's company had inflated valuations of its properties to obtain higher loan amounts. Trump is arguing on appeal that no one suffered any harm as a result of his business practices, that the judgment is unconstitutional, and that the case should have never been brought because the statute of limitations had expired. That appeals court, once it hears oral arguments, will decide whether to uphold the judgment or throw it out. And then, of course,

it can again be appealed from there. Before we finish this episode, I want to get your brain going a little bit. A few weeks ago, I tried this thing where I ended the episode with a critical thinking question because I'm really trying to get us back to a place where we think critically about issues rather than jump to conclusions and opinions by way of implicit bias or listening to how others feel about a particular issue. I don't really know what happened, but I did it that one episode and then I didn't really do it again despite all of you really enjoying it. So let's do it today and then hopefully I remember to do it every episode going forward.

The issue that I want you to think about today comes from Nicole Shanahan's comments about their campaign and what their campaign has gone through. More specifically, what she had to say about the DNC's actions. So the lawsuits against Kennedy regarding ballot eligibility in various states, the social media campaigns, etc. Do you believe our justice system should have consequences for interfering with another party's political campaign? And to add to that, if you answer yes, what actions do you believe rise to the level of requiring some sort of consequence? In other words, where would that hypothetical threshold lie in what's acceptable and what's not when competing against another party in an election? And this hypothetical

is not just about the DNC, by the way. Let's throw the RNC in there too. Ask yourself these questions on both sides of the aisle because you can't say, obviously, you know, you can't say one party can interfere and the other can't. So make sure that you're answering this question while holding both major parties to the same standard. And when thinking about interference, keep in mind, we're not only talking about interfering with a candidate's right and ability to run fairly and freely, but also in the citizen's right to vote. So if the DNC or RNC files a lawsuit and gets a candidate kicked off of a state ballot, is that an interference with our right as citizens to vote in a fair and free election? And who should be able to bring lawsuits like that? Is it the states,

private citizens, political parties? Who should be able to challenge ballot eligibility? And if you want to take this a step further, ask yourselves whether there should be more severe consequences for interfering with a non-major party candidate, the underdog, if you will. These third party candidates obviously don't have the same resources that major party candidates do. So ask yourself, should there be a different rule there? I know that's a lot of questions that I just posed, but the beauty of a podcast is that you can rewind and listen to it as many times as you need to. You don't even need to answer all of those questions or any of them for that matter, but the questions are just here to get you thinking critically about the issue if you want to challenge yourselves a little bit. That is what I have for you today.

Thank you so much for being here. Have a great night and I will talk to you tomorrow.