Mayor Michael Bloomberg and his aides at the NYC Department of Health seem to have been caught unawares Monday when Judge Milton Tingling Jr. struck down their “Portion Cap” ban on large sizes of sweetened beverages. They probably realized the mayor’s signature nanny-state initiative was unpopular with ordinary New Yorkers; but lulled, perhaps, by favorable press, they hadn’t realized how vulnerable it was on legal grounds as well.
In the short term, Judge Tingling’s decision is a delicious win for consumer liberty against the Napoleonic New Bossiness streak in the city’s chief executive. As has been pointed out, however, the judge would not necessarily have struck the regulations down had they been adopted by the New York City Council rather than imposed by the mayor’s appointees through administrative fiat; he wasn’t recognizing any general right of individuals to decide for themselves what foods to consume. Moreover, the judge’s diagnosis of the rules as “arbitrary and capricious” because they were riddled by so many exceptions is at best double-edged from opponents’ standpoint; would we really prefer rules redrafted so as to allow fewer exceptions?
But yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)
