The case is in US District Court for the Northern District of Texas, so appeals would be heard in the US Court of Appeals for the 5th Circuit—which is generally regarded as one of the most conservative appeals courts in the country.

In April, the FTC issued a rule that would render the vast majority of current noncompete clauses unenforceable and ban future ones. The agency said that noncompete clauses are “an unfair method of competition and therefore a violation of Section 5 of the FTC Act,”

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“The issue presented is whether the FTC’s ability to promulgate rules concerning unfair methods of competition include the authority to create substantive rules regarding unfair methods of competition,” Brown, a Trump appointee, wrote.

Brown acknowledged that “the FTC has some authority to promulgate rules to preclude unfair methods of competition.” But “the text, structure, and history of the FTC Act reveal that the FTC lacks substantive rulemaking authority with respect to unfair methods of competition under Section 6(g),” she wrote.