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."
Critics, including especially me, had criticized the alleged "science" upon which the health department relied prior to its adoption of the ban. As I wrote in comments Keep Food Legal filed in opposition to the ban before it was adopted, "the only evidence [the health department] cites as support for… its proposed ban is a 2005 Annual Review of Public Health journal article. Yet the cited article… merely cites in pertinent part an earlier study concluding 'that technology may be primarily responsible for the obesity epidemic.'"
As I then wrote, "the study that [the health department] has used as the very foundation of its proposed ban offers little or no support for banning soda of any size, and might better be used to support a ban on iPhones, televisions, or public transportation."
It's not difficult to find support among straphangers for Judge Renwick's decision.
New Yorkers interviewed by local news station NY1 this week were unanimous in siding with the court.
George Washington University Law School Professor Jonathan Turley questioned Mayor Bloomberg's wisdom in deciding to appeal the latest ruling, calling the soda ban "a law that is not only paternalistic but utterly unconstitutional."
Turley, who last year called the ban "facially absurd," labeled it this week "the ultimate example of the 'Nanny state' where the government dictates the proper lifestyle choices and risks for adults."
And he blasted the ban as a scheme designed "to take away choice and to dictate Dr. Bloomberg's diet for all citizens."
My only immediate criticism of Judge Tingling's ruling in March riffed along those same lines. I wrote then that "I'd like to see the court being more vocal in defending people's rights to make their own choices[.]"
Judge Renwick has done just that. In her decision, she writes that the ban "infring[es] on individual rights" and "manipulates choices to try to change consumer norms."
"Instead of offering information and letting the consumer decide," she writes, "the Board's decision effectively relies upon the behavioral economics concept that consumers are pushed into better behavior when certain choices are made less convenient."
But Judge Renwick also took pains to note that her ruling did not preclude future "soda consumption restrictions, provided that they are enacted by the government body with the authority to do so." That, we are left to presume, would be New York's elected City Council.
But Turley, the George Washington University Law School professor, isn't optimistic that route would be any more successful, writing it "would trigger another constitutional challenge."
Thankfully, time is running out for the mayor. After all, Mayor Bloomberg's mayoral carriage of nearly 12 years is nearly ready to turn back into a pumpkin. His term in office ends just 150 days from today.
And, as I wrote last month, none of Bloomberg's likely successors as mayor support this ban. That means Bloomberg is likely throwing taxpayer money hand over fist into this series of appeals in an effort to resuscitate a rule that five judges have already found to be patently unconstitutional and which the person who succeeds him in office is likely to revoke even Bloomberg's last-gasp court efforts were to succeed.
We've heard a good deal recently about how New Yorkers don't quit. That's an admirable trait to a point—a point that Mayor Bloomberg has long since passed.