I’m at the Commentary magazine blog this morning with a second bite (second gulp?) at the NYC soda ban ruling. This time I look at the separation‐​of‐​powers angle, and at the way Judge Milton Tingling, Jr.‘s ruling addressed the overgrown ambitions of some in the “public health” community to control more and more of life. Although the decision did not forestall the New York City Council from adopting nanny‐​state regulations in the future should it see fit, I argue, 

…yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.) 


Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.


The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health.…


Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. … In that legal finding is the germ of a much‐​needed rebuke to some actors in the public‐​health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health‐​related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

Read the whole thing at Commentary here. Background in yesterday’s post here.