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Jay Evensen: Bloomberg’s 16-ounce soda defeat a lesson in governance

Published: Thursday, Aug. 1 2013 12:00 a.m. MDT

Pearl Ganotisi sips from her 24-ounce soda as she eats her meal in an American hamburger chain in Manila, Philippines. New York Mayor Michael Bloomberg has proposed a ban on the sale of large sodas and other sugary drinks in restaurants, delis and movie theaters in the hopes of combating obesity.

Pat Roque, AP

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It’s popular in these parts to think of New York City as almost a foreign country — a place so far from the rest of the nation’s amber waves of grain that it seems more like an expensive theme park than the home of millions of people.

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.

Jay Evensen is associate editor of the Deseret News editorial page. E-mail him at even@desnews.com. For more content, visit his web site, www.jayevensen.com.

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