Thursday, March 14, 2013
The opinion of a New York judge holding unconstitutional the NYC Department of Health regulation regarding soda sizes - - - popularly known as Mayor Bloomberg's soda ban - - - might be viewed as a triumph of conservative principles deployed to prevent government overreaching.
But over at Slate, Emily Bazelon provides a contrary view. Indeed, she writes that
Judge Tingling paid lip service to the principle that courts must defer to elected bodies, which include executive agencies, but really, he is just substituting his judgment for theirs.
She has a good analysis of the opinion, both the separation of powers issue and the "arbitrary and capricious" conclusion, but also situates the opinion within larger notions of "conservative judicial activism."
Worth a read, especially for those outside NYC who want more depth than the surfeit of news stories are providing.