Manhattan state Supreme Court Justice Milton Tingling has struck a victory for sanity (as well as individual choice) in striking down New York Mayor Bloomberg’s widely ridiculed ban on large sugary drinks. As we previously discussed, the law was a poorly drafted and poorly conceived ban that allowed a host of higher caloric drinks to be sold in bars and other establishments. Tingling found the law to be “arbitrary and capricious.” Bloomberg has appeared to have developed an insatiable appetite to dictating what others can eat, including a proposed crackdown on popcorn and milk. After the soda ban, a long list of items have been put forward to Bloomberg to ban before Judge Tingling put a halt to the feeding frenzy.
Tingling focused on the obvious “loopholes” in the law that barred sales for some establishments while allowed the drinks to be sold by other establishments “even within a particular City block, much less the City as a whole.” The judge also found that the law created a an administrative Leviathan and violate the separation of powers doctrine” by sweeping into areas of legislative authority with the city council.
As we discussed earlier, I have no problem with banning sodas in school as many district have done. However, Bloomberg has decided that educational programs and warnings are not enough because adults are not meeting the expectations of the government. Bloomberg is quoted as saying “I look across this country, and people are obese, and everybody wrings their hands, and nobody’s willing to do something about it.” The solution therefore is to take away choice and to dictate Dr. Bloomberg’s diet for all citizens.
Bloomberg insisted that when you are told that you cannot have that soda, “Nobody is taking away any of your rights. This way, we’re just telling you ‘That’s a lot of soda.’” Really? Sounds a lot like “you can’t have that soda.”
Honestly, if prohibition did not work for alcohol, it is likely to be even less successful for sodas. Then there are those other items like french fries, onion rings, and other unhealthy foods eaten in excessive quantities. How about requiring proof that a large stuffed pizza has no fewer than four persons willing to sign for it? I think people have a right to an unhealthy lifestyle. This is not like second-hand smoke that harms others. You can be around someone with a large soda and remain perfectly healthy. Then there are those high calorie alcoholic drinks being served with the loaded stuffed potatoes in bars around New York.
After the ruling, Bloomberg insisted “I’ve got to defend my children, and yours, and do what’s right to save lives.” Sixty percent of New Yorkers opposed the limit and clearly believe that they do not need Bloomberg making choices for them or their families. However, most parents feel that they can defend their own children and make choices for them. Moreover, Bloomberg did not ban sodas for school children, he dictated what adults can drink. The ban was facially absurd from the start since it would only force customers to buy multiple drinks if they wanted the same amount. Then there was the confusion of the lines of exemptions. The ban did not apply to pure fruit juice or fruit smoothies or drinks that are more than half milk. Starbucks yesterday vowed to continue to serve sweetened coffee drinks before the ruling, causing an outburst by Bloomberg.
Undeterred, Bloomberg has decided to spend more money in fighting the ruling and affirm his right to control the diets of people in the city. He rejects the widespread objections over individual choice and insists that New Yorkers must be required to comply with the dietary demands of his government. However, that Tingling feeling yesterday was the voice of reason.
Source: WSJ
SwM,
Re libertarian views … I’m not a libertarian but there are some issues …
For me the issue is not smoking, sugary drinks, alcohol, too much perfume or aftershave which often triggers asthma attacks for some, processed foods, the list goes on and on … the issue is the exercise of governmental power in coercive legal enforcement through regulation and legislation.
Rights can be a tricky argument but for the sake of brevity and using the example of “smoking bans”: the smoker’s “right” is a limited form of liberty which contravenes a more important right, namely the right to life and liberty of the non-smoker. Thus the government can exercise its power in public places where all gather but overstepped their bounds when they legislated/regulated what private businesses could permit and would definitely be out of bounds if they legislated/regulated the use of tobacco in one’s home etc.
Or, from another perspective … the right to an abortion does not mean every woman must have an abortion just as the right to vote does not demand that every citizen must vote or the right of free speech means one has to express an opinion.
To that point, I believe there are some democracies (Brazil, democratic republic, with a presidential system, comes to mind) where a coercive law does apply to the right to vote in that if one is eligible to vote and doesn’t, a fine is levied. Of course Silva the clown ran for office and won … ‘Silva received about 1.3m votes in last month’s elections after his campaign videos drew millions of viewers on the internet with slogans such as “It can’t get any worse” and “What does a federal deputy do? Truly, I don’t know. But vote for me and you’ll find out.” ‘
“Thus the government can exercise its power in public places where all gather but overstepped their bounds when they legislated/regulated what private businesses could permit and would definitely be out of bounds if they legislated/regulated the use of tobacco in one’s home etc.”
Blouise,
I quite agree. If a private bar or restaurant wants to allow smoking within its premises, then it is none of the government’s interest to stop it.
MIKE Spindell, thank you for your reply.
Sanity emerges from a man named, Tingling. Think of all the shit he got when he was a kid named, Milton Tingling? He has endured and said to the government, “NO.” The first and second inclination for all citizens when the govt. seeks to control you should be, “NO!!”
most fast food places have drink dispencers with public access and one can refill with no charge.
Joe and Mika got into a heated discussion this morning on Morning Joe, MSNBC, over the issue.
Is this case different from Sierra Club vs. Department of Defense (for violating 42 USC 17142) because of individual participation?
In other words individuals can choose to not drink the sodas, but they can not choose to not breathe polluted air?
The federal court dismissed the Sierra Club lawsuit because “even if the military obeyed the law that would not stop others from polluting the air”, therefore Sierra Club did not have standing.
They could take the money out of the failing school system.
Undeterred, Bloomberg has decided to spend more money in fighting the ruling and affirm his right to control the diets of people in the city.
~+~
Soda Jerk
I heard Bloomberg’s going to appeal, who’s paying for the legal team on the side of the city. What a crusade
Justice Holmes, I think that is the driving reason behind all this. He loves corporations, and making money. We all know you get more quantity for less cost when you buy in bulk. Now if you want to still drink 32 ounces, you can- but you have to pay for several drinks and several taxes (unless you plan and buy them all at once). I have a feeling like this will be more expensive than one single 32oz cup.
(Off Topic) As a libertarian and non-smoker, you guys hit the nail on the head with my opinion of the ban. Private property rights exist! I was never one to frequent bars in the first place, smoking or no. Nobody ever forced me into a bar. If I didn’t like the way the establishment was run, I used my freedom to go somewhere else. I find smoking disgusting. The ban to me was just the government infringing on private property rights.
Ya, give me liberty or give me death but dont give me death by your dumb so called Libertarian views that its ok to smoke around me.
I am a Libertarian. Smoking around other humans or dogs is not only disgusting, it is intentional infliction of death and emotional distress. We know a bartender from the marina bar who never smoked himself but worked in bars with smokers for thirty years and has Stage Four Lung cancer. For some “smoker” to think it is ok to just puff away in the presence of other humans and dogs is ridiculous. Guns are quicker if ya want to do the suicide thing and do not inflict death on others unless you are a bad shot.
Bloomberg is a person who tries to make changes which matter rather than changes that matter to pollsters. So he is wrong about big soda pops. He is right about smoking bans.
Now when you smokers inflict death to my air, I get back at you as best as I can. My name might give one an idea as to the manner in which I speak.
John154: arbitrarily going from a 10 round to a 7 round magazine….that makes as much sense.
Those are not equivalent. The point of the magazine ban is to force a shooter to take time to reload, during which time he could be shot or apprehended. The intent is to protect innocent citizens from a deranged shooter. Although one could argue that reload time also presents an opening in a person’s self defense against a criminal, one is still talking about interactions between people.
The soft drink ban is a personal choice; there is no regulation of action between the drinker and anybody else, Bloomberg is trying to protect people from their own desires, which are none of his business.
The libertarian saying is “Your right to swing your fist ends at my nose,” is a cute (if inaccurate) way of capturing the idea of interaction between people. (Actually your right to swing your fist ends where I perceive a plausible threat of imminent harm to me, which is pretty far from my nose).
Drinking a bathtub of soda or eating 5000 calories of cake or whiling away a few hours eating a few pounds of chocolate are all your own business. Gun regulation is about interactions between people and the balancing of their respective rights, like the right to life.
As a libertarian I’ll take a stab at the smoking question.
I think you should be free to smoke anything you want. I also think I should be free to breath fresh air absent of any smoke you put in the air. So if I’m a guest in your home I guess I’ll have to breath your smoke if I want to stay. If I’m in my house or outside in public space, keep your stinking smoke to yourself. Thus a ban in public space makes perfect sense to me.
Same goes for big gulp. go ahead and buy the 320oz big gulp, drink to your heart’s content, gain 300 lbs, have at it. When the EMTs come to your house and have to rent a fork lift to get you, don’t make me pay for the fork lift. That was a choice of yours.
Bob,
Good to see you sir…how’s life treating you….
BTW Blouise,
In case you were wondering; “the exercise of power beyond right which no one has a right to” is Locke.
Last night on CNN I watched Jeffery Toobin say that Judge who issued the ruling was dead wrong on the arbitrary and capricious argument. However, he didn’t address the violation of the separation of powers argument.
Personally, I thought both arguments by Tingle were sound.
Is there any way to get Prof. Turley to address the arguments made within the opinion (see below) rather than just the policy concerns?
http://www.courts.state.ny.us/whatsnew/pdf/ny-coalition-vs-deptHealth.pdf
The Centrist’s like Tom Friedman, who see Bloomberg as a non-partisan Presidential Candidate are not fools, but are like Friedman part of the Plutocracy.
Reblogged this on euzicasa and commented:
Drink responsibly!
No, Bloomberg loves corporations. He especially loves developers. While cuttin school lunches and closing schools he is giving billions in tax breaks and subsidies to developers who are building buildings that house units that go for upwards of $100 million.
Smoking is different by the way because second hand smoke is dangerous to non smokers. The smoking ban was handled very differently and many who initially objected including restaurants now are glad for it.
People thirsty for soft drinks can never get enough.
Bloomberg thirsty for power can never get enough
Here’s an idea, how about supporting limits on the power of Bloomburg and all politicians like him.
Oh yeah, the bill of rights doe’s that, and most of the time the Supreme Court supports it, that is when the justices uphole the constitution and not let political leanings, or their personal views temper their judgement.