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Friday, March 15, 2013

Local Separation of Powers?

Two thoughts on the recent decision about NYC's soda portion cap.  I am -- quite incidentally -- teaching Boreali on M0nday, so am focused on the lower court's application of that case to strike the local Health Department's implementation of the Mayor's policy.

1.  One important problem for the application of Boreali (which doesn't come across quite in Rick's otherwise nice post -- or my colleague Aaron Saiger's) is that Boreali dealt with the separation of powers betweeen a state legislature and a state agency (the Public Health Council).  And it is not obvious at all why city separation of powers principles must track the state's (lower federal district court precedent, notwithstanding).  The City Council, for example, is not bicameral.  And it is not obvious why city agencies ought to be treated with the same non-delegation regime the state chooses for its major instrumentalities of governance.  Accord Moreau v. Flanders, 15 A.3d 565, 579 (R.I. 2011) (“After considering the arguments raised by the parties, we hold that the separation of powers doctrine is a concept foreign to municipal governance.”).  Thanks to Annie Decker for showing me the light here -- and to Nestor Davidson for starting to get people to think about local administrative law. 

2.  In light of my Localist Statutory Interpretation paper (forthcoming any day now), I couldn't help thinking about the fact that the judge issuing the decision is subject to election in 2014.  And it is pretty clear that Bloomberg won't be running then(!).  So although Rick likes to take his policy from meddlesome mayors more than judges, I tend to like taking my policy from people who can be voted out of office when they blow it.  And that is just what Tingling did.  

Posted by Ethan Leib on March 15, 2013 at 10:12 AM | Permalink


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Ethan -- how much accountability to think is generated by trial court elections in new york (or anywhere else)? Nominations are guaranteed by each party (see the facts from the Lopez-Torres case) and Democratic nominees never lose no matter what they do, due to the lack of information about candidates and the strong power of the national party heuristic. (For a discussion of why this is, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1122422). Unless a trial judge makes a party leader mad, there's little about his or her performance that will affect reelection. Mayoral approval ratings on the other hand are relatively more responsive to public opinion on issues and performance.

Posted by: D.Schleicher | Mar 16, 2013 11:08:11 AM

Not very. But maybe more than term-limited people who are not on the next ballot at all?

I'm thinking through these problems in my last two papers (the Penn one linked above and the Chicago piece with Bruhl). I end up having to cite Lopez Torres (and your work) because of how thin our information is about what goes on in these election environments. My intuitions are similar to yours about the lack of accountability as a general matter. But I still wonder if there isn't something to be said for answering the "who decides" questions at the retail level, preferring the one who can face the voters next year.

Posted by: Ethan Leib | Mar 17, 2013 4:56:53 PM

Fair enough, but even at the retail level, I'm pretty skeptical here that Tingling faces greater accountability for his actions. Bloomberg has a lot to lose if things go badly (a national reputation on health issues, the ability to influence NYC politics going forward), whereas Judge Tingling's name will be forgotten by all in 3. 2. 1.......

Posted by: D.Schleicher | Mar 17, 2013 10:24:35 PM

btw, this shouldn't be taken as a ding on the paper(s), which I think are pretty fantastic......

Posted by: D.Schleicher | Mar 17, 2013 10:25:30 PM

I share your intuitions and appreciate the comments on the papers, which are hard to believe sometimes! And yet I meet some of these judges -- Fordham grads at alum events, say -- and they describe a relationship with their constituents that made me rethink my intuitions. I hope to use a sabbatical next year to do a little more work figuring this stuff out.

Posted by: Ethan Leib | Mar 18, 2013 7:56:51 AM

"And it is not obvious why city agencies ought to be treated with the same non-delegation regime the state chooses for its major instrumentalities of governance."

If you mean that this is not obvious based on first principles, I wouldn't necessarily disagree -- though I think it's important to keep in mind that both the population of New York City and the size of its city government are larger than most state governments.

But the legal question isn't a matter of reasoning from first principles, it's a matter of interpreting the relevant legal materials. And these materials suggest that the balance of power between the council and city agencies is intended to be broadly similar to that between the state legislature and state agencies, at least with respect to public health. The New York State Constitution grants municipalities the power to adopt "local laws" "relating to" the "safety, health, and well-being" of inhabitants. Art. 9 Sect. 2. The New York State Municipal Home Rule Law provides that the "legislative body of a local government" may delegate the "power to adopt resolutions or to promulgate rules and regulations for carrying into effect or fully administering the provisions of any local law." MHR Sect. 10. The New York City Charter vests the "legislative power" to adopt local laws in the city council. Charter Sects. 21, 32. The department of health's function is to "enforce" applicable public health laws. Charter Sect. 556.

Obviously, these are broad provisions. But it's not clear that they call for a significantly broader power of legislative delegation in the city context than in the state (or, for that matter, federal) context.

Posted by: AF | Mar 18, 2013 11:40:30 AM

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