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InsiderOnline Blog: March 2013

Separation of Powers Gives Consumer Freedom a Reprieve

On Monday, a New York State trial court overturned New York City’s ban on large-size sodas that was set to go into effect on Tuesday. The court ruled not that consumers have a right to choose their own soda size, but that the rules were arbitrary and capricious and that the city’s Department of Health had no authority to issue the rules under existing law. The department was, in effect, writing new law, a power reserved for legislatures and city councils. As Walter Olson explains, this separation-of-powers ruling nevertheless contains “the germ of a much-needed rebuke to some actors in the public-health movement”:

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. [Commentary, March 13]

Posted on 03/15/13 11:47 AM by Alex Adrianson

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