Instead, the court invalidated the soda ban because it violated the city’s separation of powers doctrine. The city’s legislature never voted for a soda ban, nor had the legislature granted specific authority to the mayor’s office to tackle the obesity problem. In short, the Board of Health – part of Mayor Bloomberg’s executive branch – had usurped power from the legislative branch to act as lawmakers who wanted to ban soda.
The ruling is certainly a win for libertarians. A major factor in the growth of government is the unchecked lawmaking by unelected bureaucrats, be they at the federal Environment Protection Agency or New York City’s Board of Health. By making certain that only legislative branches pass actual laws, we, the people, can better keep track of new laws, and we can hold our legislators accountable for the laws they pass.
The court, however, did not say anything about individual liberties or the equity of law across beverage and food industries. This gave hope to proponents of the soda ban who see the New York ruling as a procedural hurdle – cumbersome, but manageable. Consider the food regulation advocate Marion Nestle who optimistically wrote after the ruling, “Even if the city loses the final appeal, the 16-ounce soda cap is the writing on the wall for soda companies.”In addition to being a great writer and a scholar of the law, Stephen is also the best racquetball player I have ever met. Seriously.