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Thursday, May 08, 2014

An Amicus Brief in the "Soda Ban" Case: Protecting Local Governments' Home Rule over Administrative Law

You might recall that lower courts in New York struck down Mayor Bloomberg's 16-oz. cap on soda portion size on the ground that the Board of Health -- the local agency that amended the Health Code to include the portion cap -- lacked delegated authority to regulate portion size for the purpose of discouraging obesity. In an earlier post, I took issue with these courts' narrow construction of local agencies' authority, noting that the decisions seemed to make common sense illegal by barring the NYC Board of Health from using cost-benefit analysis to limit the scope of their rule. Paul Diller and I sparred a bit in the comments about the role of expertise in defining agency authority.

Well, Paul and I have found common ground, after all: We drafted an amicus brief in the "Soda Ban" case and persuaded four other law profs (Kathleen Morris (Golden Gate), my colleague Clay Gillette, Rick Su (SUNY Buffalo), and Michael Herz (Cardozo) to sign it. (Download Diller & Hills Amicus Brief) Kim Richman of Reese Richman LLP) kindly filed it as counsel of record with the NY Court of Appeals.

One argument in our brief is that local governments should be freer than the state legislature to experiment with administrative law. In particular, local agencies should not be subject to the same strict non-delegation doctrine by which state agencies are arguably constrained under Boreali v. Axelrod. (We also argued that Boreali ought to be overruled or narrowly confined to its unique facts). Unlike the State Legislature, municipal legislatures are not created by Article III of the State Constitution defining legislative structure: City Councils, for instance, do not need to be bicameral. Likewise, we argued, City Charters ought to have wider latitude to experiment with broader delegations to agencies than the state legislature. Subject to oversight by two legislatures (state and local) and a powerful elected executive (the mayor) and inter-jurisdictional competition from many rival cities, such agencies are much less dangerous than their state counterparts and can, therefore, be trusted to launch governmental experiments that we might want to foreclose to higher-level agencies.

People tend to have strong priors on the substance of the so-called "Soda Ban." (I have argued in an earlier post that the libertarian objections to the portion cap's alleged paternalism are overblown). But even if one dislikes the cap's substance, one can nevertheless endorse the basic principle of municipal "home rule" autonomy with respect to agency structure: If NYC and other cities cannot diverge from state rules with respect to administrative law where externalities on non-residents are virtually non-existent, then home rule is well and truly dead. In my mind, depriving local residents of the right to run their own system of government in such a context is the worst paternalism of all.

Posted by Rick Hills on May 8, 2014 at 11:42 AM | Permalink


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