Academic journal article Albany Law Review

Can New York City Govern Itself? the Incongruity of the Court of Appeals' Recent Cases regarding Regulation of New York City by New York City

Academic journal article Albany Law Review

Can New York City Govern Itself? the Incongruity of the Court of Appeals' Recent Cases regarding Regulation of New York City by New York City

Article excerpt


This past June, the New York Court of Appeals struck down as exceeding the scope of permissible regulation the proposed "soda ban" in New York City, a public health measure that prohibited most establishments in New York City, including restaurants and movie theaters, from serving certain sugary drinks in portions larger than sixteen fluid ounces. (1) This decision was a blow to the legacy of former New York City Mayor Michael Bloomberg, who had strenuously advocated for its passage and had made it a centerpiece of his public health agenda in order to combat obesity and related diseases, such as diabetes, among New York City residents. (2) Although the soda ban had widespread support from the public health community, (3) it was vehemently opposed by a number of lobbying groups associated with the food and beverage industry, who ultimately were responsible for filing the lawsuit that successfully overturned it. (4)

The year before, however, in a big win for Mayor Bloomberg, the Court of Appeals had upheld as constitutional the HAIL Act, (5) which had been passed by the New York State Legislature after Mayor Bloomberg failed to convince the New York City Council to enact his original proposal. (6) The HAIL Act, for the first time, allowed livery cabs to accept passengers in the outer boroughs and outside Manhattan's central business district who hail the livery cabs from the street, and also expanded the number of traditional yellow cabs accessible to passengers with disabilities. (7) Although the home rule clause of the New York State Constitution limits the authority of the New York State Legislature when dealing with purely local matters, and it had always been assumed previously that laws regulating New York City taxicabs required a "home rule message," (8) the Court of Appeals held that because the regulation of taxicabs in New York City constituted a matter of substantial state interest, the State was authorized to pass the legislation without input from the New York City Council. (9)

The obvious question posed by these two decisions, only a year apart, is what explains the seemingly contradictory results? Why were outer-borough livery cabs approved by the Court of Appeals and limits on soda portions struck down? How can it be that a regulation proposed by New York City's own health commissioner was invalid for the soda ban, but regulation by the state legislature of New York City taxi cabs was appropriate? Both cases involved New York City regulations, namely the complex scheme of taxicab regulation or the proposed new limitation on the available portion size of soda. Both cases focused on the same or similar question: whether a regulation limited to New York City was appropriate under the New York State Constitution. And both cases were decided in opinions authored by Judge Pigott. Yet they came to starkly different answers--in one, a state regulation specifically limited in application to a New York City activity was held constitutional; in the other, a New York City health authority was held to lack the authority to promulgate an ordinance. Unfortunately, as discussed below, the answer to the question whether (and if) these two cases can somehow be comfortably reconciled with each other appears to be "no."


Last year's decision by the Court of Appeals in the HAIL Act case reflects the continued weakness of the state constitutional guarantee of home rule by New York City as interpreted by the courts. In Greater New York Taxi Association v. State, a local interest group based in New York City challenged the HAIL Act, a statute promulgated by the New York State Legislature, which authorized, among other things, the ability of thousands of livery cabs--not holders of taxicab medallions--to accept street hails in "underserved" areas of New York City. (10) This statute represented a direct challenge to local control of taxi services, which had been directly regulated by New York City for more than half a century. …

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