Paused Paternalism

Mar 12 2013 @ 10:45am

Less than 24 hours before it was scheduled to go into effect, a judge struck down Bloomberg’s ban on large sodas as “arbitrary and capricious.” The mayor’s response:

Rick Hills, observing that the ban was struck down for being too narrow rather than too broad, is uneasy with the judge’s ruling:

How can it make sense to force the Health Department into such a judicially tailored straitjacket, requiring bureaucrats to pursue an all-or-nothing policy whenever they implement a law? Is Justice Tingling really demanding that agencies jettison consideration of cost, administrative feasibility, personal privacy, or financial feasibility when they pursue their primary mandate? Such reasoning is not unprecedented: Recall FDA v. Brown & Williamson‘s argument that the FDA would have to ban cigarettes entirely if they were an unsafe “medical device” and not merely regulate cigarettes’ advertisements.

Frum considers the broader implications:

The serving ban obviously had problems. It represented an experiment that might or might not have achieved results. But if incremental – sorry, “arbitrary and capricious” – steps are not permissible, what is? Or is the plan that government can do nothing about the obesity problem except continue to defray through Medicare and Medicaid the large and rising costs of the super-sizing of the American population?

And Alex Koppelman wonders whether Bloomberg’s successor will support the ban:

Tingling’s ruling could well be overturned at the appellate level—the ban was widely expected to survive legal challenges without too much trouble—but that can only happen if the case gets that far. Bloomberg’s administration will go to a higher court, of course, but he’ll be out of office next year, and not everyone who’s vying to replace him supports the ban. The issue was bound to surface during the upcoming election; now it’s all but certain to, and the key question to the candidates will be whether they’ll continue the court fight if they’re elected, or if they’ll simply let it drop.