In this holiday season – I've
always been partial to this week between Christmas and New Year's –
let me offer a short posting. I want to address a controversy that
The New York Times refers to as Bloomberg's nanny state. That
venerable paper asks whether Mayor Michael Bloomberg's efforts to
dictate a healthier life style among New Yorkers was ultimately good
for them or just overly intrusive. What I find interesting is the
question: upon what authority did the mayor and his Board of Health
act? Were his policies, in this area, constitutional? Can
government, at any level, tell us how big a soda I can buy? Can
hizzoner really tell us we can't have a big gulp?
Okay, I know, the ban is not
presently being enforced since the New York Supreme Court ruled the
city did not have the legal authority to impose the restriction. But
the City is appealing that decision. And yes, with the new
administration coming into power, who knows what the future of the
policy will be? But that still makes me wonder what in the law led
Bloomberg to think he and his Board of Health had the authority in
the first place? After all, the court's decision against the ban was
based on a determination that the legal restriction per se was
not beyond the limits of government, but that the particular ban was
determined by a body of the executive department of government, not
its legislative department. The policy was initially passed by the
City's Board of Health, not the State Legislature or even its city
council. As such, the policy violates the “separation of power”
principle. The court did not question the City's power to issue such
a regulation. Therefore, the question remains: on what basis does
New York have this authority?
During the holiday season,
students are particularly aware of consuming festive foods and
drinks. Perhaps it is even a more appropriate time to teach about a
state's police powers, and this case in New York seems particularly
well-suited to bring the lesson home. Let me quote from the court's
decision on the matter:
There is no reasonable opposition
to the long established proposition that a legislative body may vest
in an administrative body certain authority. However, as stated in
[the former case,] Boreali:
“A legislative grant of
authority must be construed, whenever possible, so that it is no
broader than that which the separation of power doctrine permits …
Even under the broadest and most open ended of statutory mandates, an
administrative agency may not use its authority as a license to
correct whatever social evils it perceives” And “While the
separation of powers doctrine give the Legislative considerable
leeway in delegating its regulatory powers, enactments conferring
authority on administrative agencies In broad or general terms must
be interpreted in light of the limitations that the constitution
imposes [NY const. Art 111 …]
In this quote we have a clear
acknowledgment that the state does have the power, the police power,
to pass legislation to promote health – as it does to also promote
safety, education, and morals – of the state. The state's
foundational compact, its constitution, spells out the limits of such
powers. This is within our constitutional conception and when such
public figures, who claim to be devotees of our constitutional
system, then mock a state's prerogative to exercise that power, one
questions either the sincerity of the devotion or the level of
understanding that figure possesses about how our system works. Who
might that be? Sarah Palin comes to mind.
My point is that our
constitutional foundation is not a marker for libertarian ideals.
Our history of individuality vs. collectivity, in terms of our public
policy, has been an active and vibrant tension in which, until
relatively recently, has sided in favor of collectivity. This case
of New York City trying to ban soft drink size is an interesting and
relevant case by which to demonstrate this tension. I recommend that
teachers get the New York Supreme Court decision1
so that students can see what all is at stake and of concern not only
to the courts, but to bureaucratic officials who deal with these
types of issues.
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