Thursday, March 14, 2013

A Federal Constitutional Right to Soda? Fat Chance

By Mike Dorf

Libertarians all over the land are no doubt hailing the New York State trial court decision invalidating the Bloomberg ban on plus-size sugary drinks as a blow against the excesses of the nanny state.  Professor Buchanan has argued on this blog and on Verdict that the case for the ban is considerably stronger than critics claim--especially since it's functionally a tax.  I don't have a strong view on the policy wisdom of the ban but I do have some thoughts on its constitutionality.

The ruling by NYS Judge Tingling rests on two alternative state law grounds.  First, the court holds that the NYC executive branch agencies lacked the authority to enact (what I'll simply call) the big-sugary-drink rule because such rules are beyond the powers conferred on those agencies.  The City Council, as the legislature for the city, might have the authority to legislate in this area.  So too, a city executive agency might have such authority if it were properly delegated under state law.  However, Judge Tingling finds that given the relevant authorizations that were actually enacted, the big-sugary-drink rule was ultra vires.  I am not an expert in the relevant bodies of state and city law, so I won't venture an opinion as to whether Judge Tingling is right or wrong on this point.  I will simply say that even if he's right on this point--which accounts for most of the reasoning in the opinion--that would leave NYC free to enact the big-sugary-drink ban by other means.

But that avenue is foreclosed by the court's alternative basis for the ruling.  Judge Tingling also finds that the big-sugary-drink ban is substantively impermissible as arbitrary and capricious.  This conclusion, if affirmed on appeal, would mean that neither NYC nor any other agency in the state could promulgate the big-sugary-drink ban.  Indeed, one might be tempted to think that the judge's reasoning, if generally accepted, would invalidate a similar big-sugary-drink ban enacted by any jurisdiction in the country.  After all, the federal Constitution requires that every law challenged on due process or equal protection grounds be supported by a "rational basis."  Judge Tingling says in his opinion that in conducting "arbitrary and capriciousness" review, he "affoards the [Health] Board every degree of judicial deference."  Nonetheless, because the big-sugary-drink rule is shot through with exceptions and loopholes, he finds that it is an arbitrary means of pursuing the legitimate goal of combating obesity and other ill health effects of big sugary drinks.

Does that mean that the big-sugary-drink ban would also be unconstitutional under the federal Constitution?  I don't think so.  Again, I'm not an expert in New York administrative law, but what little experience I have in the area leads me to conclude that the "arbitrary and capricious" standard for judicial review of agency action under NY law is roughly the same as the parallel standard under the federal Administrative Procedure Act.  And under the federal APA, although "arbitrary and capricious" review is very deferential, it is not as deferential as rational basis scrutiny under the Constitution.

What's the difference?  At the very least, "arbitrary and capricious" review takes account of the actual facts as known to the agency.  That appears to be true under NY law as well.  Judge Tingling says that an agency action will be deemed arbitrary and capricious if it "is without foundation in fact."  But traditional rational basis review of the sort that the federal Constitution applies to the regulation of industries and products is even more deferential still.  It allows laws and rules so long as it is possible for a reviewing court to imagine a state of facts in which the law or rule would make sense, and it rationalizes all manner of exceptions on the theory that lawmakers may legitimately tackle problems one step at a time.

So, is it possible to imagine circumstances in which the big-sugary-drink ban is rationally related to its aims?  I think so.  I don't drink soda anymore, but there was a time when I lived and worked in NYC and was a regular guzzler of Coca-Cola.  I would typically buy a 20-oz bottle of soda from a vending machine before class and drink it during class.  Occasionally, the vending machines would be out of stock, so I'd go to the deli across the street or the cafeteria and buy a fountain soda.  Now, one of the oddities of the Bloomberg big-sugary-drink rule is that it doesn't apply to vending machines, so to make the hypo work, I have to imagine that Columbia Law School (where I taught during my Coke habit days) lacked vending machines.  In reality, when I couldn't get my fix from the vending machine, I typically got the 20-oz or larger fountain soda and so in this slightly altered hypo, I imagine that I would have been purchasing a 20-oz or larger fountain soda--absent the Bloomberg rule.  With the Bloomberg rule, I would have been purchasing 16-oz fountain sodas.  In other words, as someone who would have plausibly fit within the target demographic of the rule, I would have had my behavior changed by it (absent the vending machines).

Can I imagine that there are some number of people who, like my younger self, are regular soda guzzlers, but unlike my younger self, lack convenient access to vending machines or other convenient alternative purchase opportunities?  Sure.  Can I also imagine that for some of these people, consuming 4 ounces less of a sugary drink each day is the difference between overweight and obesity or the difference between high blood sugar and diabetes?  Again, yes.  And that is all that is needed for the rule to survive rational basis scrutiny.

Accordingly, I conclude that even if the NY ruling is affirmed on appeal, the federal Constitution would allow a similar sugary-drink ban in a jurisdiction that permits it under state law.