Earlier this week a four-judge panel became the latest New York State court to rule that New York City Mayor Mike Bloomberg’s reviled and ridiculed soda ban is unconstitutional. That’s five judges now who’ve all told Bloomberg, on two occasions, what almost everyone but him and those in his employ seems to know: You can’t do that.
But Bloomberg still isn’t listening.
Both the mayor and the city’s lead attorney, Michael Cardozo, promised to appeal this latest loss one last time. But it’s no sure bet that New York State’s highest court will bother to entertain what would be Bloomberg’s last-available appeal.
This week’s unanimous decision, written by New York State Supreme Court Appellate Division Judge Diane T. Renwick and joined by her three colleagues, echoes the decision handed down in March by Supreme Court Judge Milton Tingling, which halted the ban before it could take effect.
Opponents, including Keep Food Legal, the nonprofit I lead, claimed the ban was unconstitutional in part because the health department exceeded its authority under the state constitution when it adopted the ban. As Judge Tingling had done in his withering decision, the appeals court here seized on that fact.
The appeals court notes from the outset of its decision that Mayor Bloomberg ignored a letter opposing the soda ban sent to him by 14 members of the city council, who implored the mayor at the least to put his proposed ban to a vote before the council.
In a stinging rebuke that could have been delivered (though with less aplomb and panache) by any second-year law student worth their salt, the court dismissed out of hand the mayor's argument that the city's health department has any legislative powers. The court called this "a fundamental misunderstanding of the power of administrative agencies" on the part of the Bloomberg administration.
The court called the soda ban “violative of the principle of separation of powers.”
"Because the constitution vests legislative power in the legislature," Judge Renwick explains in a sentence that appears to be ripped from an Administrative Law professor's day-one lecture notes, "administrative agencies may only effect policy mandated by statute and cannot exercise sweeping power to create whatever rule they deem necessary." Ouch.
The court also disputed the mayor's claim that "compelling" evidence links soda consumption to obesity. In fact, the court blasted the city's claims that the soda ban had anything to do with science.
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"[D]espite the City’s argument to the contrary," wrote Judge Renwick in her ruling, "the Board did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes." She continued that "soda consumption cannot be classified as a health hazard per se" because the very city health department that adopted the ban "has never categorized soda and the other targeted sugary drinks as inherently unhealthy."