Bloomberg's Big Gulp Ban Fizzles

As most New Yorkers are aware, Mayor Michael Bloomberg has been fighting to implement a ban on the sale of any cup or bottle of sweetened drinks larger than 16 fluid ounces.  The proposed law is an effort by Bloomberg and New York City to combat the rapid increase of obesity throughout the city, while opponents deride the effort as an encroachment of civil liberties.  On Tuesday, an appeals court upheld a lower court finding that the sugary drink ban was unconstitutional and an overreach in authority by the Mayor and Board of Health.  The appellate judges wrote in a unanimous decision that "Like the Supreme Court, we conclude that in promulgating this regulation the Board of Health failed to act within the bounds of its lawfully delegated authority".  While the big gulp ban has been found to be unconstitutional, it is important to understand the details of the law and not simply rely on catchy headlines from cable news. 

The Facts: The ban is not a law, rather a regulation passed by New York City's Board of Health and was highly touted by Mayor Michael Bloomberg.  The ban went into effect in March, but litigation from the beverage industry among others brought about a court ordered injunction while the constitutionality of the ban went through the judicial process.  The ban applied to any cup or bottle of sweetened drink larger than 16 fluid ounces BUT there were a significant number of notable exemptions.  The drink ban does not apply to diet-sodas, fruit juices, dairy based drinks, or alcoholic beverages.  The ban also does not apply to grocery or convenience stores. The Board of Health and Mayor Bloomberg said the ban is an effort to combat the out of control obesity epidemic in the city, and the numbers are startling with 60% of New York City adults classified as obese and 40% of NYC school children classified as obese.  Officials and doctors argue, these rapidly rising obesity numbers directly effect all other New Yorkers through rising health care costs and other fees associated with providing care for those individuals.

 

While the obesity numbers are dire, the courts have found that the ban to be unconstitutional because it came from the executive body of the city, a violation of the state principle of separation of powers.  The court found that the Board of Health and Mayor were acting too much like a legislative body through the enactment of sweeping policy change.  They also took issue with the large amount of exemptions saying if it were a legitimate ban it would apply to all public and private enterprises, not only the hand selected ones.  While the drink ban clearly lacks constitutional merit, the court made sure to clarify nothing in the decision was meant to "express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so".   This seems to leave the door open in case the appropriate legislative body took up the issue. 

 

The reality is the Mayor and Board of Health likely overstepped their authority by implementing the sugary drink ban.  The further hurt their cause by allowing numerous loopholes and exemptions, which directly contradict the law.  If a legislative body like the city council took up the issue and implemented a similar ban, they would have a strong claim it is in the best interest of the public based on the rising costs of health care which is being unfairly passed on to other residents.  But the Bloomberg and the Board of Health are part of the executive branch and therefore lack the authority to implement sweeping policy changes, which is the role of the legislature.  I predict the ban in its current form likely will not be allowed by the courts, and agree with the appeals court that the effort is unconstitutional.  As always, please feel free to share your thoughts!

The Game Changer

Deciding to go to law school, a career as an attorney, and all that goes into working in the field of law can be a complex and difficult process for some.  For others, the decision to be an attorney was always second nature and they knew from their freshman year as an undergraduate they were destined to take the bar and be a lawyer.  In previous posts I have discussed the perils of student loans and interviewed a current attorney about the changes within the industry, however, my decision to go to law school was not really a conventional path, but it is a story I wanted to share.

Early in my collegiate career I had the opportunity to intern for a Congressman in Washington, D.C., and work in the exciting atmosphere of our nation's capitol.  At the time, I was extremely interested in politics and government, and set my sights on law school in hopes of returning to Washington one day soon.  I loved everything about the D.C. and the rich sense of history invoked a passion and drive to one day contribute to my government, that is, until I actually stepped foot on Capitol Hill.  I was young and naive, but my eyes were quickly opened to the reality of the methods of our elected officials.  When I arrived in Washington for my internship I already had my heart set on law school, but my reasoning was based around the strong desire to make a life and career working for my government.  While I wasn't necessarily driven to become a politician, I thought a career in a government agency, the Justice Department, or with a private firm would be my chosen course.  My first few days were a whirlwind of excitement, intrigue, and passion, yet this fire would soon be extinguished.

I saw law school as my ticket to a career and life in Washington, D.C., and even found myself daydreaming about the future as I walked to work those first few days.  I showed up with an energy to absorb as much as possible, participate as much as possible, and lay a foundation for my future.  However, it did not take long for the reality to sink in.  The public, interns, and anyone with interest is able to sit in on congressional hearings which are constantly in progress on a wide range of topics.  One Monday morning I got a ticket to sit in on a transportation hearing, and I know to many it sounds mundane and far from interesting, but I was filled with excitement to see a real hearing and the constitution at work!  Instead of a bustling and energetic debate, what I saw caused the first crack in my foundation of hope in our government and drive for law school.  Not a single congressman from either party even bothered to show up, instead they left the individuals testifying to speak to a semi-circle of empty seats.  I kept waiting for the members to show up at any moment, so I sat there for nearly two hours as transportation experts, scientists, and community leaders testified to empty chairs.

Now my naivety had not fully been exposed or accepted by my logical mind, so I set myself up for additional heartbreak. I remember walking home to my rented room and justifying the zero attendance by telling myself, "Oh a major meeting must have come up" or "Perhaps a national security issue was going on simultaneously", along with a flurry of other excuses all in an effort to keep my passion untarnished.  I had already based my decision to attend law school on my innate passion for the system of government set up by the founding fathers.  To have my faith broken would leave my basis for law school shattered.  The very same week, I waited in line to be one of a few hundred citizens to receive tickets to watch the House of Representatives vote on a number of bills before a week-long recess.  While my disappointment in the empty hearing meeting was still fresh, the excitement of witnessing our elected officials vote on tangible bills was going to be more than enough to reinvigorate my passion.  As the procedural technicalities began, I wondered when the congressional members were going to file in for voting and debate.  After a little while, a lone congressman came through a backdoor and walked up to the podium.  As he was officially recognized and given the floor and time allotment to speak, he began his prepared remarks to an empty chamber.  He stood there and gave, at times, a passionate speech to literally no one.  Almost every single desk and chair were empty, with the only people present the tourists up in the gallery with me or a few staffers pushing papers up front.  This is what his impassioned speech looked like:
 

I sat through the congressman's entire speech to an empty House chamber.  As he walked away from the podium, the voting and roll call commenced.  Perhaps a few other congressmen and congresswomen slipped in to cast their vote, but they were nearly impossible to pick out among the staffers and interns.  After the 15 minutes of voting, NV (not vote) and PRES (present) easily received more voted than YAY and NAY combined.  I walked out of the Capitol and finally accepted reality.  Regardless of political party, our elected leaders do not debate one another, listen to their colleagues speeches, or even hardly show up for votes.  I saw more congressmen on the cable news rounds in the hour following the pathetic vote, and I finally grasped what our legislative branch had devolved to.  The rest of my internship was only one disappointing experience after another, and it became abundantly clear our congressional leaders put raising campaign money and television sound bites vastly ahead of their actual congressional duties.  I saw no debates, conversations or impassioned deliberations, rather only empty chairs, empty chambers and empty promises.

I tell this story not to complain or harp on the already known fact of congressional ineptitude, but to illustrate the revaluation of myself that ensued.  I had based my entire reasoning for law school on wanting to work in the government and the amazing city of our nation's capitol.  While I still love D.C. and all the history, I eventually realized my desire for law school and my future cannot hinge on factors outside of my control.  I now want to attend law school to further my education and to gain a legal focus where I can contribute to society in a beneficial and positive manner.  I am a passionate individual and I know I can channel my passion for law into a focus where I hopefully can contribute to a discussion and environment which is literally the exact opposite from that on Capitol Hill.  I simply understand that I will be most effective and influential by helping others, rather than only myself.