Chevron doesn’t matter—it’s been cut against since obama.

Khan’s methods have drawn intense criticism from the business community, most recently with the agency’s labor-friendly rulemaking banning noncompete agreements in employment contracts. That action relies on the FTC’s interpretation of its authority to allow it to take action in this area — the kind of thing that brings up questions about agency deference.

But the FTC has already had to contend with trends cutting away at agency deference for quite some time. For example, the noncompete rulemaking is already facing scrutiny under the major questions doctrine, which is cited in the US Chamber of Commerce’s challenge. It’s a principle that’s shown up in Supreme Court cases that basically says Congress must grant clear authority for questions of great political or economic significance. The chamber argues in its lawsuit to block the FTC noncompete rule that the Supreme Court has invoked the major questions Doctrine “to reject similar attempts by administrative agencies to take unprecedented actions with vast economic and political significance based on nothing more than ambiguous and ancillary statutory text—particularly where the agency has never before pointed to that text as a font of regulatory power.”

“The Supreme Court has taken most of the wind out of the sails of Chevron with the major questions doctrine, in the sense that when an agency enters into a regulatory area that it hasn’t been in before, the Supreme Court has created a strong presumption the agency does not have the authority to regulate,” said Jack Beermann, an administrative law expert and professor at Boston University School of Law. “And so Chevron doesn’t enter into the picture in cases like that.”

David Vladeck, a professor at Georgetown Law who led the FTC Bureau of Consumer Protection from 2009 to 2012, said that “courts started to back off of Chevron” during the Obama administration, decreasing the utility of citing it as a defense. “As a result, lawyers like myself who were representing agencies would not rely on Chevron, and generally wouldn’t cite it because it wasn’t going to change the balance of the case. But it may signal that you need this deference in order to prevail.” Because of that, the overruling of Chevron could have a more muted impact on an agency like the FTC because “by and large, Chevron has been a dead letter for quite some time,” Vladeck said.