Ban the Big-Soda Ban

by A. J. Kritikos
NYC’s Board of Health exceeded its authority in a classic case of legislation by the administrative state.

The highest court in New York recently heard oral arguments on the infamous soda-ban regulation promulgated by the New York City Board of Health.

There are many reasons to dislike this ban:

To begin with, sodas larger than 16 ounces should be relatively low on the list of priorities of a city that has triple-digit homicides every year. Even if the goal were worth pursuing, though, the regulation has so many loopholes that it’s essentially unworkable.

But, in addition to being poor policy, the regulation is a classic example of bureaucrats — in this case, the Board of Health — usurping the role of the legislature — the New York City Council. As a result, 23 members of the City Council filed an amicus brief with an earlier appellate court opposing the Board of Health’s seizure of legislative power in violation of the state constitution and the New York City Charter’s separation-of-powers principles. The trial court and the lower appellate court both sided with the City Council members and other petitioners, holding that the regulation exceeded the authority delegated to the board.

It is the task of the City Council “to make primary decisions as to policy in this area,” the trial-court judge wrote. At root, the separation-of-powers principle relied on to invalidate the regulation originates in John Locke’s work from the 19th century. Locke asserted: that the people cannot “be bound by any Laws but such as are Enacted by those whom they have chosen, and authorized to make Laws for them.” The people, however, do not choose the Board of Health. Because its members lack democratic legitimacy and popular accountability, the board cannot make policy. Policymaking is reserved for the City Council.

The prototypical work of an administrative agency is filling in the gaps of a law enacted by the legislature. For example, if the City Council had passed a law banning large sodas, then the Board of Health could have issued a regulation prohibiting sodas larger than 16 ounces. In that situation, the board would merely be fleshing out the meaning of the term “large soda” that the City Council had written in its ordinance.

But that’s not what happened here. Here, the board claimed that it had power to regulate “all matters affecting the health of the City.” Needless to say, the trial court was taken aback at such a massive assertion of power. The trial court observed that such a power would be “limited only by [the board’s] imagination” and that it “would not only violate the separation-of-powers doctrine, it would eviscerate it.”

Although the attempt to seize such immense power is troubling, it’s even worse in light of the fact that the Board of Health pressed forward with the regulation even after the City Council and the state assembly considered and then rejected several proposals to target sugary drinks. Where the people’s representatives deliberated and then explicitly decided not to act, the unelected board of bureaucrats plowed ahead with the unpopular and costly ban. On September 13, 2012, the board voted 8–0 to adopt the soda ban. It was not democracy’s best day.

One of the reasons that the law has more holes than a block of Swiss cheese (for instance, only certain businesses and only certain sugary drinks are subject to it) is that an undemocratic institution such as the Board of Health is incompetent to balance the various interests involved in policymaking. To get a complex law such as a soda ban right, lawmakers must find the proper balance between health concerns, costs for businesses, and individual liberty. The Board of Health has precisely zero competence to determine what value New Yorkers place on the freedom to buy whatever size soda they wish, nor does the board have the ability to survey and calculate the business costs of changing the soda size for just one city.

The trial court and intermediate appellate courts were right to smack down the Board of Health’s power grab. The New York Court of Appeals should similarly affirm the right of New Yorkers to have their elected representatives — not politically insulated bureaucrats — determine public policy.

— A. J. Kritikos is a 2014 graduate of Harvard Law School.

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