Contributor, The Volokh Conspiracy

From yesterday’s N.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y. City Dep’t of Health & Mental Hygiene (N.Y. June 26, 2014) (a 4-to-2 decision):

We hold that the New York City Board of Health, in adopting the “Sugary Drinks Portion Cap Rule,” exceeded the scope of its regulatory authority. By choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York….

“[I]t is the province of the people’s elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends.” The focus [of the analysis] must be on whether the challenged regulation attempts to resolve difficult social problems in this manner. That task, policy-making, is reserved to the legislative branch.

The court pointed to four circumstances that, under its precedent (which had “held that the New York State Public Health Council overstepped its regulatory authority when it adopted regulations prohibiting smoking in a wide variety of indoor areas open to the public that had previously been considered, but not adopted, by the State Legislature”), would be used to determine whether a regulation impermissibly “attempts to resolve difficult social problems”:

  1. “whether the agency engaged in the balancing of competing concerns of public health and economic cost, thus acting on its own idea of sound public policy”;
  2. “whether the agency created its own comprehensive set of rules without benefit of legislative guidance” (as opposed to “conducting permissible interstitial rule-making”);
  3. “whether the challenged rule governs an area in which the Legislature has repeatedly tried to reach agreement in the face of substantial public debate and vigorous lobbying by interested factions”;
  4. “whether special expertise or technical competence was [not] involved in the development of the rule.”

Balancing these factors, the court concluded that the Rule exceeded the Board’s powers. (Of course, this inquiry is necessarily one of degree; many permissible regulations do involve some of these factors to a considerable extent.) Thanks to How Appealing for the pointer.