The Federal Trade Commission’s decision in September 2025 to abandon its defense of the Non-Compete Rule—while simultaneously pursuing targeted enforcement actions against specific employers—raises fundamental questions about the boundaries of executive constitutional judgment and administrative law. This analysis examines whether the FTC’s approach represents a legitimate exercise of the executive branch’s authority to decline defense of unconstitutional regulations, or an impermissible attempt to circumvent the procedural requirements that Motor Vehicle Manufacturers Association v. State Farm imposes on agency policy reversals. The distinction matters: if agencies can effectively rescind regulations by declaring them constitutionally indefensible and abandoning their defense, it would create a concerning loophole in the Administrative Procedure Act’s requirement for reasoned decision-making and public participation in regulatory changes.Continue Reading Regulation by capitulation: The tension between the FTC abandoning its defense of the Non-Compete Rule and the administrative law requirements for rescinding rules