Bloomberg’s Soda Grab and the Administrative State

What are the natural and reasonable limits to the authority of a public health agency?
March 13, 2013 • Commentary
This article appeared in Commentary on March 13, 2013.

Mayor Michael Bloomberg and his aides at the NYC Department of Health seem to have been caught unawares Monday when Judge Milton Tingling Jr. struck down their “Portion Cap” ban on large sizes of sweetened beverages. They probably realized the mayor’s signature nanny‐​state initiative was unpopular with ordinary New Yorkers; but lulled, perhaps, by favorable press, they hadn’t realized how vulnerable it was on legal grounds as well.

In the short term, Judge Tingling’s decision is a delicious win for consumer liberty against the Napoleonic New Bossiness streak in the city’s chief executive. As has been pointed out, however, the judge would not necessarily have struck the regulations down had they been adopted by the New York City Council rather than imposed by the mayor’s appointees through administrative fiat; he wasn’t recognizing any general right of individuals to decide for themselves what foods to consume. Moreover, the judge’s diagnosis of the rules as “arbitrary and capricious” because they were riddled by so many exceptions is at best double‐​edged from opponents’ standpoint; would we really prefer rules redrafted so as to allow fewer exceptions?

But 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. (They did concede that the department could not take actions that were otherwise unconstitutional—say, suspending freedom of the press or quartering troops in civilian homes during peacetime.)

Against this, Judge Tingling reasoned (as have judges in other cases) that the charter language could not have been meant to grant the department an absolute and monarch‐​like authority over a subject populace; natural and reasonable limits must be read into it. What are the natural and reasonable limits to the authority of a public health agency? 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. Those are indeed the traditional functions at the core of a public health agency; saving us from voluntarily assumed dietary choices that may very gradually undermine our health is not among them. So if the agency wishes to assert powers in these new areas, it must ask the legislature for new authority.

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.

It’s about time someone told them no. Let’s thank Judge Tingling for doing that.

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