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Rejection of Mayor Bloomberg's soda ban may be the first step in curbing mayoral power

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Colin Hedrick
Legal Intern, Manhattan Institute's Center for Legal Policy

Tuesday, March 4, 2013: the day freedom died in New York City! That was going to be the original title of this post. While it may seem hyperbolic, it would have been true, at least symbolically, for those who like to make their own choices in life without government interference.Those choices were to be limited by Mayor Bloomberg's ban on sugary drinks over 16oz. that was set to go into effect on March 4.

Originally, this post was going to examine both the legal and policy reasons against the ban, but a last minute reprieve from this task and the ban itself came in the form of a decision overruling the ban handed down by Supreme Court Justice Milton Tingling. Justice Tingling's ruling is sweeping in its denunciation of the Mayor's proposal and is based on the very same arguments that would have been articulated in the previously planned posting.

The Justice was specifically concerned that enforcement of the ban would be "fraught with arbitrary and capricious consequences" due to the wide range of businesses exempted from the ban and the ill-justified exceptions for some drinks but not others. In reality, the uneven enforcement and loopholes in the rule would "effectively defeat the stated purpose of the rule."

While the statutory construction based rebuke of this rule was stinging, it is the limitation of city agency powers and the separation of powers reasoning for the decision that, if upheld on appeal, will have lasting effects on city governance. Justice Tingling clearly states, that simply because the board of health (which is entirely appointed by the Mayor) has emergency powers, such as the ability to quarantine, does not mean that it can exercise those powers in non-emergency situations such as this. This portion of the ruling in particular could have lasting effects on the ability of city agencies to regulate all areas of city life.

Finally, the Justice struck a blow against the Mayor and the ban on the grounds of separation of powers. In essence, the ban was something that fell under the legislative power of the city council and the Mayor's imperialesque edict was a usurpation of those powers. This too could have a lasting impact on how future mayors govern the city, especially given the recent trend towards highly powerful mayors who bypass or ignore the city council.

For further details on the ruling and the Mayor's reaction, see the NYT or WSJ. For an in-depth legal discussion, see Walter Olson's article in the Daily Caller, or his excellent podcast on Overlawyered. For reactions from the legal and policy community, including the Manhattan Institute's own James R. Copland, see this piece in NRO.

All in all, this is the right ruling, not only for those who enjoy a big soda at the movies, but for those who advocate for limited government, checks and balances, and limitations on the power of the executive.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.