Tag: michael bloomberg

Send This Napoleon Back, Waiter: Appeals Court Flunks NYC Soda Ban

Welcome news from New York: a unanimous four-judge appeals court has confirmed a trial court order striking down the New York Department of Health’s attempt to ban large soda portions. The decision is here, Newsday coverage here, and our earlier coverage here.

The appeals court ruled that in enacting the ban the NYC department of health had overstepped its legally granted powers. As I observed in this Commentary article in March, New York has its own distinctive body of law by which courts step in to prevent administrative agencies from claiming quasi-legislative powers not clearly delegated to them, the rules laid out in a 1987 case called Boreali v. Axelrod. The appeals court agreed with trial court judge Milton Tingling that Boreali was directly controlling, and that the department had clearly overstepped Boreali’s ban on essentially legislative action by an administrative agency. (Why, you ask, don’t federal courts apply as tough a standard to keep administrative agencies in Washington, D.C. from arrogating to themselves essentially legislative functions? Good question…)

Although the appeals court did not reach the issue of whether the Bloomberg rules were “arbitrary and capricious,” and although neither it nor Judge Tingling reached the underlying issues of individual consumer choice that are at stake, this was far more than just a “win on a technicality.” The rule that government agencies cannot overstep their lawfully granted powers is a vital one in protecting the liberty of the citizen. On this issue, and not this alone, Mayor Michael Bloomberg has acted more as a Napoleon issuing peremptory dictates than as an elected executive carrying out the will of legislators on the City Council and in Albany. 

Napoleons of the political class are a good bit more dangerous to us all than the sugar-laden Napoleons of the bakery shelf. We should rejoice that this one is getting sent back to the kitchen.

Judge Strikes Down Bloomberg’s Soda Grab

My new op-ed at the Daily Caller is their “most shared” this morning. Excerpt:

On Monday, Judge Tingling struck down the soda ban in a sweeping opinion that does everything but hand Mayor Poppins his umbrella and carpetbag. This wasn’t just a temporary restraining order putting the regulation on hold for a few weeks. The judge struck down the ban permanently both on the merits (“fraught with arbitrary and capricious consequences”) and as overstepping the rightful legal powers of the New York City Department of Health…

[For] the mayor and his public health crew… the biggest reproach in the decision isn’t in being found to have gotten the facts wrong, it’s being found to have violated the law.

And if anyone is expected to know and play by the rules, it’s a nanny.

Michael Grynbaum, New York Times: 

[Bloomberg’s] administration seemed caught off guard by the decision. Before the judge ruled, the mayor had called for the soda limits to be adopted by cities around the globe; he now faces the possibility that one of his most cherished endeavors will not come to fruition before he leaves office, if ever. …

The measure was already broadly unpopular: In a New York Times poll conducted last August, 60 percent of city residents said it was a bad idea for the Bloomberg administration to pass the limits. 

The Times also profiles Judge Tingling and reports on reactions by the New Yorker in the street (not favorable toward the ban). Coverage from yesterday, including my podcast with Cato’s Caleb Brown, here. [cross-posted and slightly condensed from Overlawyered]

When Government Is The False Advertiser, Cont’d

Mayor Bloomberg’s New York City health department has come in for repeated criticism in this space and elsewhere for crusading against salty and fattening foods through ad campaigns that manipulate viewer reactions in ways that border on the misleading and deceptive (“What can we get away with?” famously asked one official). They’re at it again. On January 9, Gotham’s for-your-own-good crew unveiled a new ad warning “Portions have grown. So has Type 2 diabetes, which can lead to amputations,” dramatically illustrated with a photo of an obese man with a stump where his leg had been. But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.

While on the topic of nannyism, the Times also reported this week that Penn State researchers found that the fad for banning so-called junk food in schools had no apparent effect: “No matter how the researchers looked at the data, they could find no correlation at all between obesity and attending a school where sweets and salty snacks were available.” Number of “food policy” types quoted in the article admitting “maybe we were wrong”: zero.

RIP Christopher Hitchens

Christopher Hitchens, a man of great passions and great talents, perhaps the greatest essayist of our age, has died. Among his lesser-known works was a Cato Institute talk, “Mayor Bloomberg’s Nanny State,” delivered at a seminar in New York City on December 10, 2004.

Ten years before that, in his still-thoroughly-leftist era, he offered us this backhanded compliment in the Nation of December 12, 1994:

During the lunacy of the Reagan period, I was impressed by how often it was the Cato Institute that held the sane meeting or published the thoughtful position paper.

Herewith “Mayor Bloomberg’s Nanny State”:

I often take the train from Washington, D.C., to New York and back. A few years ago they put the smoking car on the end of the train so nonsmokers wouldn’t have to go through it to get to other parts of the train. And then the day came when they said, “We’re taking that car off the train altogether.” And I thought, “Now we’ve crossed a small but important line.” It’s the difference between protecting nonsmokers and state-sponsored behavior modification for smokers.

And I thought there was insufficient alarm at the ease with which that was done. Because state behavior modification, no matter what its object, should be viewed skeptically at the very least. There’s serious danger in the imposition of uniformity—the suggestion that one size must fit all.

When the complete ban on smoking in all public places was enacted in California, I called up the assemblyman who wrote the legislation and I said: “I’ve just discovered that bars are not going to be able to turn themselves into a club for the evening and charge a buck for admission for people who want to have a cigarette. You won’t be able to have a private club. You won’t even be able to have a smoke-easy, if you will, in California.”

And he said, “That’s right.”

I said, “Well, how can you possibly justify that?”

And he said, “Well, it’s to protect the staff. It’s labor protection legislation. We don’t want someone who doesn’t want to smoke, who doesn’t like it, having to work in a smoky bar.”

And I said, “You don’t think that if there were bars that allowed it and bars that forbade it, that, sooner or later people would apply for the jobs they preferred, and it would sort of shake out?”

He replied, “No. We could not make that assumption.”

So we have to postulate the existence, if you will, of a nonexistent person in a nonexistent dilemma: the person who can find only one job, and that job is as barkeep in a smoking bar. This person must be held to exist, though he or she is notional. But everyone who actually does exist must act as if this person is real.

There used to be areas, like the West Village in New York or North Beach in San Francisco, that are now dull and boring and have to be policed. And I think that’s a terrible loss. I write better when I have a cigarette and a drink. I’m more fun to be with—other people seem less boring. The life of bohemia, of the small cafe and the little bar that never quite closes, is essential to cultural production. It may seem like a small thing. It doesn’t add very much to the GNP. But if you take it away, you may not know what you’ve lost until it’s too late.

But suppose all this was really a good idea—people might live longer. Suppose all that was really true. There would still be the question of enforcement, that awkward little bit that comes between your conception of utopia and your arrival there. The enforcement bit. You could appoint regulators and inspectors to enforce the law. It would take quite a lot of them, but you could do it. There are such people. I know about them because they’ve come after me.

My editor, Graydon Carter, the splendid editor of Vanity Fair, and I were having a cigarette in his office. And someone on our staff—it’s not very nice to think about it—was kind enough to drop a dime on us. And round the guys came. “You’re busted!” These people are paid by the city, which evidently has no better use for its police.

I think that’s bad enough. But then Graydon went on holiday, and I went back to Washington. And his office was empty. But they came round again and they issued him another ticket because he had on his desk an object that could have been used as an ashtray. In his absence. With no one smoking. But there are officials who have time enough to come round and do that.

The worst part is that the staff has to become the enforcers. The waitresses have to become the enforcers. The maitre d’ has to become the enforcer. He has to act as the mayor’s representative. Because it’s he who is going to be fined, not you. If you break the law in his bar, he is going to have to pay.

So everyone is made into a snitch. Everyone is made into an enforcer. And everyone is working for the government. And all of this in the name of our health.

Now, I was very depressed by the way that this argument was conducted. There were people who stuck up for the idea that maybe there should be a bit of smoking allowed here and there. But they all said it was a matter of the revenue of the bars and the restaurants. That was the way the New York Times phrased it.

In no forum did I read: “Well, is there a question of liberty involved here at all? Is there a matter of freedom? Is there a matter of taste? Is there a matter of the relationship of citizens to one another?”

And something about it made me worry and makes me worry still. The old slogan of the anarchist left used to be that the problem is not those who have the will to command. They will always be there, and we feel we understand where the authoritarians come from. The problem is the will to obey. The problem is the people who want to be pushed around, the people who want to be taken care of, the people who want to be a part of it all, the people who want to be working for a big protective brother.

When The Government Is The False Advertiser

I had an op-ed in the Washington Times yesterday on government’s growing participation in public-health scare campaigns demonizing everyday foods that are fattening, salty, or thought to be bad for us in other ways. In particular, I singled out Mayor Michael Bloomberg’s New York City Department of Health, which has followed up one scientifically dubious ad campaign on sweetened soft drinks (“What can we get away with?” asked one official) with an even worse – in fact, grossly misleading and manipulative – attack on salt in processed foods:

It shows a can of soup bursting at the seams with table salt, whole mounds and piles of it. The city’s underlying point is not 100 percent off-base - healthful in most other ways, conventional canned soup is a relatively salty food - but the actual amount of salt in a can is more like 1 teaspoon, not the third of a cup or more depicted in the city’s ridiculously exaggerated photo. Not to put too fine a point on it, but the Bloomberg soup ad is built on a visual lie.

What would happen if a private advertiser tried to get away with imagery as misleading as this? Well, in 1970, in a case still taught in business schools, Campbell’s got caught manipulating the soup pictures in its ads; its photographers had put marbles at the bottom of the bowl so that the pleasing vegetables would be more visible on top. The Federal Trade Commission filed a deceptive-advertising complaint to make the company stop.

The FTC’s authority would not extend so far as to ordering New York City to cease its misrepresentations, and for various reasons (including the principle that states and localities ought largely to retain independence from federal dictation) we should be glad it doesn’t. But couldn’t we at least ask that the federal taxpayer not be made to subsidize the false advertising?

Last month, the federal Centers for Disease Control - headed by Bloomberg’s own [former health commissioner Dr. Thomas] Frieden - announced a $412,000 grant to assist the city in its anti-salt efforts.

The full piece is here. Incidentally, via the American Council on Science and Health comes word of a new Harvard study finding that Americans’ intake of salt is almost exactly the same as it was 50 years ago; it also seems that international studies find that people in other countries tend to pursue and attain very similar levels of salt intake. If accurate, that would cast doubt on two key themes of public health alarmism, namely that America is experiencing some sort of epidemic of exposure to salty processed foods, and that such an epidemic underlies rising hypertension rates (which, as the article explains, may owe more to obesity than to salt intake). I could not resist a chuckle at the name of the press outlet reporting the results of the new study: Bloomberg Business Week.

Bootleggers & Baptists, Sugary Soda Edition

Here’s a poor, unsuccessful letter that impressed the relevant New York Times reporters, but not their editorial overlords:

It may seem counter-intuitive that bleeding-heart anti-hunger groups and “Big Food and Big Beverage” would ally to oppose Mayor Bloomberg’s request to prevent New Yorkers from using food stamps to purchase sugary sodas [“Unlikely Allies in Food Stamp Debate,” October 16].  Yet the “bootleggers and Baptists” theory of regulation explains that this “strange bedfellows” phenomenon is actually the norm, rather than the exception.

Most laws have two types of supporters: the true believers and those who benefit financially.  Baptists don’t want you drinking on the Lord ’s Day, for example, while bootleggers profit from the above-market prices that Blue Laws enable them to charge on Sundays.  Consequently, both groups support politicians who support Blue Laws.

Baptists-and-bootleggers coalitions underlie almost all government activities. Defense spending: (neo)conservatives and defense contractors.  President Obama’s new health care law: the political left and the health care and insurance industries. Ethanol subsidies: environmentalists and agribusiness. Education: egalitarians and teachers’ unions. The list goes on.

It’s easier to illustrate the theory (and sexier) when the bootleggers are non-believers who cynically manipulate government solely for their own gain.  Yet one can be both a Baptist and a bootlegger. The Coca-Cola Company may sincerely believe that society benefits when the government subsidizes sugary sodas for poor people.  Even so, a bootlegger-cum-Baptist can still rip off taxpayers.

This morning, NPR reported on another bootleggers-and-Baptists coalition: anti-immigration zealots and the prison industry.

Take Off the Blinders: Diversity Demands Educational Freedom

Yesterday, FoxNews.com posted a story on what appears to be a growing problem for public school systems across the country: accommodating Muslim holidays. Unfortunately, the report didn’t contain the solution to the problem. It did, though, contain a very succinct discussion of the root of the problem; an example of the good intent that causes people to ignore the problem; and the kind of “solution” that is ultimately at odds with the most basic of American values.

A quote from New York City mayor Michael Bloomberg captured the essence of the problem:

One of the problems you have with a diverse city is that if you close the schools for every single holiday, there won’t be any school.

There you have the basic conundrum in a nutshell: Whenever you have a diverse population – whether in a hamlet, city, state, or nation – and everyone has to support a single system of government schools, you cannot possibly treat all people – or even most of them – equally. Either there are winners and losers, or nobody gets anything.

Understanding why public schooling  can’t handle diversity – why, simply, one size can’t fit all – is really basic common sense. So why isn’t there more outrage over, or even just recognition of, the utter illogic of our education system? Mohamed Elibiary, President and CEO of the Freedom and Justice Foundation, illustrated the attitude that likely causes lots of Americans to wear blinders:

I’m a little torn. I want Muslims to be getting the same recognition as other Americans, but at the same time I don’t want to see public education systems be a battleground between religious identities, because then we’re missing the point of why we have a public education system to begin with.

No doubt many people truly believe as Elibiary does: that a major purpose of public schooling is to bring diverse people together and, by doing so, unify them. It’s a fine intention, but also a classic case of intent not matching reality. Indeed, the reality is often very much the opposite. Rather than unifying people, public schooling has repeatedly forced religious conflict (as well as conflict over race, ethnicity, political philosophy, curriculum, and on and on).

It started almost on Day One, when Horace Mann, a Unitarian, was locked in conflict with Calvinists over what kind of Protestantism the state’s nascent “common schools” would teach. When Roman Catholics began arriving in America in large numbers, battles – sometimes deadly – erupted over who would get what kind of Christianity in the public schools. When Tennessee outlawed the teaching of evolution, the Scopes “Monkey Trial” fired the first big blast in the war over the teaching of human origins, a fight we are still very much in. In the latter part of the twentieth century, the fighting moved to what, if any, religious expression is permissible in public schools. And now, we’re getting fired up over whose holidays will get the most deference from government schools. It almost seems like war without end.

Finally, the article gropes at – but doesn’t grab – the solution to our education and diversity problem. Says Georgetown University professor Bradley Blakeman:

That’s the beauty of having a school district responsive to the localities as opposed to blanket rules that affect multiple jurisdictions, states or even countries. One size doesn’t fit all when it comes to these kinds of rules and regulations. We’re not a homogeneous nation, which makes us so great.

Blakeman is heading in the right direction (even as federal policy pushes us the opposite way): The closer that control of education gets to individual people, the more easily it can be tailored to unique needs, values, and desires. Unfortunately, Blakeman fails to identify the obvious last step: completely decoupling government funding from provision of education. In other words, instituting universal educational choice. Making matters worse, Blakeman for all intents and purposes concludes that as long as decisions are made at the local level, and the majority gets its way, everything is fine:

A school should reflect the beliefs and practices of the community that they serve. And if school boards are sensitive to their populations, that’s fine, provided the decisions of the board reflect the majority opinion of its community.

It may sound harsh, but one way to describe this is simply ”tyranny of the majority” – whatever the majority wants, it gets, as long as it is the local majority. It’s a solution that completely ignores that ours is not supposed to be a nation of majority rule, but rule of law that protects individual freedom. And, of course, one of the most basic protections is the prohibition on government tipping the scales in favor of one religion, two religions, or no religion at all. 

This solution also fails, by the way, to address the problem at hand: School districts – not states or Washington – having to accommodate diverse populations. In other words, ”local control” is ultimately no solution at all.

Universal choice is, quite simply, the only system of education compatible with the most basic of American values – individual liberty – and the only way to avoid constant, divisive battles over who will get what out of the schools. Hopefully, people will come to realize that before our conflicts get even worse.