| And yet when we see things make it big there we often start by tolerating them, then allowing them to amuse us on tourist trips, and finally embracing them on our own hometown streets named Broadway. So we should all thank New York Mayor Michael Bloomberg for reminding us of something important: In a representative government, the people’s representatives make the laws, not some unelected bureaucratic board, and not a chief executive who fancies himself smarter than the unwashed masses. Actually, the mayor wasn’t trying to remind us of this. He really doesn’t even agree with it. But if he hadn’t gotten the city’s hand-picked health board to pass a rule outlawing the sale of most (but not all) sugary beverages larger than 16 ounces, judges in the empire state wouldn’t have had the opportunity to remind us of the nation’s governing tradition, and of the reasons behind it. And remind us they have, in no uncertain terms. First, a lower court judge struck down the law on the day before it was to take effect last March. Then, last Tuesday, a four-member panel of an appeals court unanimously upheld that decision, saying the ban “violated the state principle of separation of powers.” Those are words that can give pause in this age of bureaucratic rule-making and judicial activism. But, if you’ll pardon me, it’s the pause that refreshes. New York courts established powerful case law in 1987 that says administrative agencies can’t assume lawmaking powers unless specifically delegated to them by state lawmakers. We should wish federal courts were as mindful of how Washington’s bureaucracies overstep their bounds. On Tuesday, the court said the health board had decided, “health concerns outweigh the cost of infringing on individual rights to purchase a product that the board has never categorized as inherently dangerous.” But such a decision must also balance consumer rights and economic interests, it said, and that is something “especially suited for legislative determination…” Now that his ban has lost its fizz, the question for Bloomberg is whether to proceed to the state’s highest court, the Court of Appeals. He has been muttering about “temporary setback” and wrong decisions, but he’s probably weighing this move carefully. Bloomberg is leaving office at the end of this year, and none of the candidates seeking to replace him has the soft drink ban at the top of his or her priority list. That may be because they have to win the votes of the people. And that has been the main message from both courts so far. Forget the arguments about whether a direct correlation exists between soda pop and obesity or whether consumer choices should be limited. Forget arguments about the addictive qualities of certain ingredients, or even the mayor’s insistence that 2,000 people have died from diabetes in the city since the ban was supposed to take effect — as if smaller cups would have miraculously saved them. In other words, forget just about everything commentators and online posters have said on the subject. The bottom line, at least in New York, is that such a ban must be imposed by the city’s legislative body — the city council, which represents and is directly accountable to the people — not the board of health. If anyone is to impose a ban that arbitrarily exempts 7-Eleven and large milk shakes, and that lets you buy a 32-ounce beer at Yankee Stadium but not the same sized Coke, it should be the people’s representatives. Chances are, they won’t do such a thing because they owe their jobs to the ballot box. That must be terribly frustrating to the bureaucrats and chief executives who are so much smarter than the rest of us. |
1 Comment
Jerry Thompson
8/4/2013 02:39:00 am
It's not entirely true that bureaucrats can't pass laws as stated by Jay Evensen (August 4, 2013 Deseret News). Many times health laws are passed by the County Board of Health, State Commissions and the like. Sometimes these groups are directly involved in law making, but usually health departments have experts in the medical or environmental field who pass along their expertise in the form of ordinances and regulations that are actually approved and passed as a law by the Board of Health or other appointed body. A good example is the Environmental Protection Agency which completes laws written by Congress, such as the Clean Air Act. The law is first written and passed by Congress. It is incomplete in its Congressional form and so the bureaucrats get it and fill it out with their own interpretations of the law. A way the EPA can alter the law would be to change the standard regarding photochemical oxidants (ozone). The standard was .12 ppm and now it is .08 ppm. The powers that be at the EPA are now thinking of lowering the standard even further. This is an example of bureaucratic power outside the bounds of the elected officials. They can take the law into their own hands. As the environmental/public health law becomes more stringent the costs increase regarding its enforcement and that cost is passed on to the people.
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The author
Jay Evensen is the Opinion Editor of the Deseret News. He has more than 40 years experience as a reporter, editor and editorial writer in Oklahoma, New York City, Las Vegas and Salt Lake City. He also has been an adjunct journalism professor at Brigham Young and Weber State universities. Archives
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