Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson
Diller, Paul A., Fordham Urban Law Journal
Introduction I. Cities' Records of Administrative Rulemaking in Public Health II. Local Agencies' Unique Doctrinal Footing A. State or Local Source of Power B. Institutional Design 1. Massachusetts: Towns and Boston 2. New York City 3. Washington: King County-Seattle III. Local Health Agency Rulemaking as Wilsonian Rulemaking? A. Public Choice as the "Dominant" Model of Agency Action, and Other "Contenders" B. The Wilsonian Administrative State C. The New York City Portion-Cap Rule as Wilsonian Rulemaking? Conclusion
Local government scholars have paid significant attention to local "innovation" in the sphere of regulatory policy. (1) And for good reason. Many of these local innovations diffuse both horizontally, to other cities and counties, and vertically, to the state and federal levels, thus profoundly impacting the nation's regulatory landscape. (2) Local government scholars have devoted less effort to analyzing the form of these regulations, (3) often presuming that local law derives from ordinances passed by the general governing (and, usually, legislative) body of a city or county. (4) As a result, to the extent that scholarship considers the actors involved in formulating local policy, it usually focuses on elected officials like city councilors and mayors. (5) This Article highlights another, increasingly important source of local regulation: administrative rulemaking. Particularly in the realm of public health, cities have adopted many high-profile and innovative regulatory policies by administrative rule rather than by council-enacted ordinance. (6) Despite the increased importance of local administrative rulemaking, scant scholarship--either in local government or administrative law--has wrestled with the doctrinal and normative questions flowing therefrom. (7)
The recent litigation challenging New York City's cap on portion sizes of sugar-sweetened beverages--inaccurately called a "soda ban"--has brought the issue of local administrative rulemaking to the fore. (8) Although the city's Board of Health promulgated the portion-cap rule, it was heavily promoted by Mayor Michael Bloomberg and is therefore frequently identified with him in the popular media. (9) This article uses the New York City portion-cap rule, or the "Bloomberg soda rule," as well as public health regulations more generally, as a prism through which to analyze the distinctive characteristics of the local administrative process. Part I highlights cities' impressive record of administrative regulation in the public health realm, surveying key regulatory policies that exceeded the federal and state regulatory floors in attempting to reduce tobacco use and obesity. Part II considers the intriguing doctrinal questions that arise when an agency of a city, which itself is an agent of the state, makes rules with the force of law, and how these questions have been addressed in the New York City portion-cap litigation and elsewhere.
Part III then addresses the compelling normative and theoretical questions raised by city administrative agencies' aggressive record in the public health sphere. Municipal regulation of the tobacco, food, and soda industries beyond the federal and state regulatory floors presents a challenge to the standard "public-choice" narrative of administrative action, which suggests that agencies are likely to be influenced, if not co-opted, by the powerful industries they are supposed to regulate. In addition to industry opposition, some local public health regulations, like New York City's portion-cap rule, (10) have aroused significant popular disapproval. To explain this sort of unpopular--perhaps even elitist--rulemaking, Part III turns to Woodrow Wilson's writings, as a political scientist, on administrative agencies. Wilson idealized agencies as apolitical, expert promulgators of "scientific" regulations that would benefit the public good. …