COURT OF APPEALS
STATE OF NEW YORK
NEW YORK STATEWIDE COALITION OF HISPANIC CHAMBERS OF COMMERCE;
THE NEW YORK KOREAN-AMERICAN GROCERS ASSOCIATION; SOFT DRINK
AND BREWERY WORKERS UNION, LOCAL 812; INTERNATIONAL BROTHERHOOD
OF TEAMSTERS; THE NATIONAL RESTAURANT ASSOCIATION; THE NATIONAL
ASSOCIATION OF THEATRE OWNERS OF NEW YORK STATE; and THE AMERICAN
BEVERAGE ASSOCIATION,
Plaintiffs-Petitioners-Respondents,
For a Judgment Pursuant to Article 78 and 30 of the Civil Practice Law and Rules,
-against-
Appeal No.: 2013-00291
THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE; THE
NEW YORK CITY BOARD OF HEALTH and DR. THOMAS FARLEY, in his Official
Capacity as Commissioner of the New York City Department of Health and Mental Hygiene,
Defendants-Respondents-Appellants.
BRIEF OF WASHINGTON LEGAL FOUNDATION
AND ALLIED EDUCATIONAL FOUNDATION AS AMICI CURIAE IN SUPPORT OF
PLAINTIFFS-PETITIONERS-RESPONDENTS
Of Counsel:
Cory L. Andrews
Richard A. Samp
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 588-0302
Roy T. Englert, Jr.
Alex Potapov
ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER LLP
1801 K Street, N.W., Suite 411
Washington, D.C. 20006
Telephone: (202) 775-4500
Facsimile: (202) 775-4510
Sarah R. Prins (pro hac vice admission pending)
ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER LLP
1801 K Street, N.W., Suite 411
Washington, D.C. 20006
Telephone: (202) 775-4500
Facsimile: (202) 775-4510
Counsel for Amici Curiae
April 24, 2014
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 500.1(f) of the Rules of Practice for the Court of Appeals
of the State of New York, amici state that Washington Legal Foundation and
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subsidiaries or affiliates.
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF INTEREST .................................................................................. 1
PRELIMINARY STATEMENT ............................................................................... 2
ARGUMENT ............................................................................................................. 5
I. THIS COURT HAS STEADFASTLY PREVENTED THE
EXECUTIVE FROM USURPING THE LEGISLATURE’S
POLICYMAKING AUTHORITY ............................................................. 5
II. THIS COURT’S SEPARATION-OF-POWERS JURISPRUDENCE
HAS DEEP ROOTS IN THE AMERICAN LEGAL TRADITION ....... 10
III. VIGOROUS ENFORCEMENT OF SEPARATION-OF-POWERS
PRINCIPLES IS INDISPENSABLE TO LIBERTY AND SOUND
GOVERNANCE ....................................................................................... 13
CONCLUSION ........................................................................................................ 19
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Abigail Alliance for Better Access to Developmental
Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007),
cert. denied, 552 U.S. 1159 (2008) ........................................................................ 1
Boreali v. Axelrod,
71 N.Y.2d 1 (1987) ....................................................................................... passim
Bourquin v. Cuomo,
85 N.Y.2d 781 (1995) ...................................................................................... 6, 17
Broidrick v. Lindsay,
39 N.Y.2d 641 (1976) ............................................................................................. 4
Burby v. Howland,
9 E. H. Smith 270 (1898) ........................................................................................ 7
Campagna v. Shaffer,
73 N.Y.2d 237 (1989) .........................................................................................6, 9
Citizens for an Orderly Energy Policy, Inc. v. Cuomo,
78 N.Y.2d 398 (1991) ........................................................................................... 17
Clark v. Cuomo,
66 N.Y.2d 185 (1985) ............................................................................................. 5
Cnty. of Oneida v. Berle,
49 N.Y.2d 515 (1980) ............................................................................................. 7
Cohen v. State,
94 N.Y.2d 1 (1999) ................................................................................................. 7
Consol. Edison Co. of N.Y., Inc. v. Dep't of Envtl. Conservation,
71 N.Y.2d 186 (1988) ............................................................................................. 9
Educ. Media Co. at Va. Tech, Inc. v. Insley,
731 F.3d 291 (4th Cir. 2013) .................................................................................. 1
TABLE OF AUTHORITIES—Cont’d
Page(s)
iii
Fullilove v. Beame,
48 N.Y.2d 376 (1979) .........................................................................................5, 6
Med. Soc’y of State of N.Y. v. Serio,
100 N.Y.2d 854 (2003) ........................................................................................... 9
New York State Health Facilities Ass’n, Inc. v. Axelrod,
77 N.Y.2d 340 (1991) ........................................................................................... 17
Nicholas v. Kahn,
47 N.Y.2d 24 (1979) ............................................................................................... 5
Picone v. Comm’r of Licenses,
241 N.Y. 157 (1925) ............................................................................................... 5
Rapp v. Carey,
44 N.Y.2d 157 (1978) ................................................................................... passim
Saratoga Cnty. Chamber of Commerce v. Pataki,
100 N.Y.2d 801 (2003) ............................................................................ 6, 7, 8, 19
Seignious v. Rice,
273 N.Y. 44 (1936) ............................................................................................... 13
Small v. Moss,
279 N.Y. 288 (1938) ........................................................................................ 6, 13
Subcontractors Trade Ass’n v. Koch,
62 N.Y.2d 422 (1984) .........................................................................................4, 5
Under 21, Catholic Home Bureau for Dependent Children v.
City of New York,
65 N.Y.2d 344 (1985) ................................................................................... passim
Wayman v. Southard,
23 U.S. [10 Wheat.] 1 (1825) ............................................................................... 12
Constitutional Provisions and Statutes
N.Y. Const. art. III, § 1 .............................................................................................. 2
TABLE OF AUTHORITIES—Cont’d
Page(s)
iv
N.Y.C. Charter § 21 ................................................................................................... 2
Other Authorities
AdamsJohn Adams, “Thoughts on Government” (1776),
reprinted in 1 American Political Writing During
the Founding Era, 1760-1805
(Charles S. Hyneman & Donald S. Lutz eds., 1983) ........................................... 12
AlexandrLarry Alexander & Saikrishna Prakash, Reports of the
Nondelegation Doctrine’s Death Are Greatly Exaggerated,
70 U. Chi. L. Rev. 1297 (2003) ............................................................... 10, 12, 14
Ely Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson,
A Theory of Legislative Delegation, 68 Cornell L. Rev. 1 (1982) ...................... 15
John Hart Ely, Democracy and Distrust:
A Theory of Judicial Review (1980) ..................................................................... 15
Harold J. Krent, Delegation and Its Discontents,
94 Colum. L. Rev. 710 (1994) .............................................................................. 16
LawsonGary Lawson, Delegation and Original Meaning,
88 Va. L. Rev. 327 (2002) .................................................................................... 10
LockeJohn Locke, The Second Treatise of Government § 141 .................................. 10, 11
Federalist No. 47 (James Madison) ................................................................. 11, 12
Federalist No. 51 (James Madison) ........................................................................ 12
Federalist No. 57 (James Madison) ........................................................................ 13
John F. Manning & Matthew C. Stephenson,
Legislation and Regulation (2010) ....................................................................... 15
Montesquieu, The Spirit of the Laws
(Anne M. Cohler et al. eds., Cambridge Univ. Press 1989) (1748) ..................... 11
TABLE OF AUTHORITIES—Cont’d
Page(s)
v
Michael B. Rappaport, The Selective Nondelegation Doctrine
and the Line Item Veto: A New Approach to the Nondelegation
Doctrine and Its Implications for Clinton v. City of New York,
76 Tul. L. Rev. 265 (2001) ............................................................................ 11, 14
Jim Rossi, Institutional Design and the Lingering Legacy of
Antifederalist Separation of Powers Ideals in the States,
52 Vand. L. Rev. 1167 (1999) .............................................................................. 18
David Schoenbrod, Delegation and Democracy:
A Reply to My Critics,
20 Cardozo L. Rev. 731 (1999) ............................................................................ 16
David Schoenbrod, Power Without Responsibility (1993) ...................................... 16
David Schoenbrod, The Delegation Doctrine:
Could the Court Give It Substance?,
83 Mich. L. Rev. 1223 (1985) .............................................................................. 16
SunsteiCass R. Sunstein, Nondelegation Canons,
67 U. Chi. L. Rev. 315 (2000) ....................................................................... 14, 15
STATEMENT OF INTEREST
The Washington Legal Foundation (“WLF”) is a public interest law firm and
policy center with supporters in all 50 states, including New York. WLF devotes
substantial resources to defending and promoting free enterprise, individual rights,
a limited and accountable government, and the rule of law. In particular, WLF
frequently litigates in favor of individual consumer choice. See Educ. Media Co.
at Va. Tech, Inc. v. Insley, 731 F.3d 291 (4th Cir. 2013); Abigail Alliance for Better
Access to Developmental Drugs v. Eschenbach, 495 F.3d 695 (D.C. Cir. 2007),
cert. denied, 552 U.S. 1159 (2008).
The Allied Educational Foundation (“AEF”) is a non-profit charitable
foundation based in Tenafly, New Jersey. Founded in 1964, AEF is dedicated to
promoting education in diverse areas of study, such as law and public policy, and
has appeared in this and other state and federal courts on a number of occasions.
Amici strongly support this Court’s tradition of enforcing the separation of
powers and resisting executive overreach. As described in this brief, separation-of-
powers principles are indispensable to liberty and good governance. They also
serve as a bulwark against misconceived and heavy-handed policies such as New
York City’s “soda ban.”
Amici regard the soda ban as arbitrary, paternalistic, and profoundly
inconsistent with the separation of powers. Accordingly, we believe that this Court
2
should strike it down. Such a decision would vindicate fundamental constitutional
values, protect consumer freedom, and encourage sound regulatory policies.
PRELIMINARY STATEMENT
The Board of Health has an important role to play in improving the health of
New Yorkers, but its powers are not without limit. In passing the soda ban, the
Board exceeded its administrative authority and improperly sought to exercise
legislative power.
The separation-of-powers doctrine is clearly embodied in the New York
State Constitution, which mandates that “[t]he legislative power of this state shall
be vested in the senate and the assembly.” N.Y. Const. art. III, § 1. Further,
Section 21 of the New York City Charter provides that “[t]here shall be a council
which shall be the legislative body of the city” and that the legislative power is
vested with the council. See N.Y.C. Charter § 21. Section 21 additionally
provides that “[a]ny enumeration of powers in this charter shall not be held to limit
the legislative power of the council, except as specifically provided in this charter.”
Id. These provisions establish a separation of powers scheme at both the state and
the city level. Under 21, Catholic Home Bureau for Dependent Children v. City of
New York, 65 N.Y.2d 344, 355-56 (1985).
This Court’s decision in Boreali v. Axelrod provides crucial guidance in
applying these separation-of-powers provisions. 71 N.Y.2d 1 (1987). Boreali
3
invalidated the regulations at issue because the Public Health Council overstepped
its bounds and attempted to exercise legislative power. In reaching that
conclusion, this Court established a robust framework for evaluating whether the
executive has usurped inherently legislative authority.
Defendants’ position in this case depends, at every turn, on weakening the
Boreali framework. Although they never ask this Court to overrule Boreali, they
do invite the Court to narrow it beyond all recognition. See Defs’ Br. 30
(suggesting that this Court “sidestep[]” Boreali (internal quotation marks
omitted)).
This attempt to undermine Boreali does not come as a surprise. In their
attempt to justify the soda ban, Defendants have been forced to claim “a uniquely
broad mandate to take all necessary steps” when it comes to public health issues.
Defs.’ Br. 23 (emphasis added). Indeed, they openly claim entitlement to address
“serious issues of public health . . . without being subjected to the vagaries of the
political process.” Id. at 4 (emphasis added).
In other words, Defendants believe they are entitled to make health policy on
their own, without bothering with the lawmaking process prescribed in the New
York State Constitution and New York City Charter. This mindset is
fundamentally incompatible with Boreali, which explicitly declared that it is
“[m]anifestly . . . the province of the people’s elected representatives, rather than
4
appointed administrators, to resolve difficult social problems by making choices
among competing ends.” 71 N.Y.2d at 13.
So it is natural that Defendants are eager to sidestep Boreali—but Boreali is
not so easily evaded. This Court has repeatedly expounded the same principles in
other cases, emphasizing the “critical” proposition that “any difficulty or even
impossibility of obtaining legislation through the constitutionally prescribed
mechanisms may not be made a source of executive lawmaking power.” Rapp v.
Carey, 44 N.Y.2d 157, 167 (1978) (emphasis added); see also Subcontractors
Trade Ass’n v. Koch, 62 N.Y.2d 422, 429 (1984) (explaining that executive action
is impermissible without legislative authority, “[h]owever desirable the ostensible
purpose may be”); Broidrick v. Lindsay, 39 N.Y.2d 641, 646 (1976) (explaining
that the “subtle nature” of a problem makes it “appropriate for a broad declaration
of policy” by the legislature). Accordingly, avoiding the “vagaries of the political
process,” as Defendants urge, is not a valid reason to usurp what is more
appropriately a legislative function.
More broadly, as amici will show below, Boreali is just one link in an
unbroken chain of decisions in which this Court has vigorously policed the
separation of powers and resisted executive encroachment on legislative authority.
Those precedents are deeply rooted in the American legal tradition and
indispensable to sound governance as well as ordered liberty.
5
Defendants may genuinely believe that they have the right ideas for
addressing the obesity problem.1 But, as this Court explained almost 90 years ago,
“[l]aws are made by the law-making power and not by administrative officers
acting solely on their own ideas of sound public policy, however excellent such
ideas may be.” Picone v. Comm’r of Licenses, 241 N.Y. 157, 162 (1925).
ARGUMENT
I. THIS COURT HAS STEADFASTLY PREVENTED THE
EXECUTIVE FROM USURPING THE LEGISLATURE’S
POLICYMAKING AUTHORITY
The “central feature of [New York’s governmental system] is distribution of
powers” among the branches of government. Fullilove v. Beame, 48 N.Y.2d 376,
378 (1979). This “separate grant[ ] of power to each of the coordinate branches of
government” gives rise to the separation-of-powers doctrine. Clark v. Cuomo, 66
N.Y.2d 185, 189 (1985); see Under 21, 65 N.Y.2d at 355-56. The doctrine bars
any branch from arrogating unto itself a power belonging to another. Under 21, 65
N.Y.2d at 356; see Nicholas v. Kahn, 47 N.Y.2d 24, 30-31 (1979). Quite simply,
“[r]espect for [the government’s] structure and the system of checks and balances
inherent therein requires that none of these branches be allowed to usurp powers
residing entirely in another branch.” Subcontractors, 62 N.Y.2d at 427.
1 But see Pls.’ Br. 65-74 (explaining that the soda ban is not well crafted to achieve
its ostensible purpose and is, for that reason and others, arbitrary and capricious).
6
The legislative power is the power to set policy. Rapp, 44 N.Y.2d at 160;
see Saratoga Cnty. Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 822 (2003)
(“[T]he Governor’s actions were policymaking, and thus legislative in character.”);
Fullilove, 48 N.Y.2d at 379 (explaining that it is the legislature’s prerogative to
mandate policy). Accordingly, separation of powers “requires that the Legislature
make the critical policy decisions, while the executive branch’s responsibility is to
implement those policies.” Bourquin v. Cuomo, 85 N.Y.2d 781, 784 (1995).
Executive agencies are limited to the interstitial and practical task of
implementation; “[a]n agency cannot by its regulations effect its vision of societal
policy choices.” Campagna v. Shaffer, 73 N.Y.2d 237, 242 (1989); see also Under
21, 65 N.Y.2d at 359 (“[A]n executive may not usurp the legislative function by
enacting social policies not adopted by the Legislature.”)
This Court has repeatedly highlighted the importance of curtailing executive
overreach. The separation of powers “prevent[s] too strong a concentration of
authority in one person or body,” id. at 355, see also Rapp, 44 N.Y.2d at 162. In
the absence of guidance from the legislative branch, “there would be no effective
restraint upon unfair discrimination or other arbitrary action by the administrative
officer.” Small v. Moss, 279 N.Y. 288, 299 (1938).
More broadly, this Court has always been quite clear about the crucial role
the separation of powers plays in the state constitutional scheme. “Extended
7
analysis is not needed to detail the dangers of upsetting the delicate balance of
power existing among the [branches], for history teaches that a foundation of free
government is imperiled when any one of the coordinate branches absorbs or
interferes with another.” Cnty. of Oneida v. Berle, 49 N.Y.2d 515, 522 (1980). As
this Court put it more than a century ago, “[i]t is not merely for convenience in the
transaction of business that [the branches] are kept separate by the constitution, but
for the preservation of liberty itself, which is ended by the union of the three
functions in one man, or in one body of men.” Burby v. Howland, 9 E. H. Smith
270, 282 (1898).
Moreover, only this Court, as “the final arbiter of true separation of powers
disputes,” Cohen v. State, 94 N.Y.2d 1, 11 (1999), can ensure that the balance
among the branches is preserved. See Saratoga, 100 N.Y.2d at 822 (“It . . . falls to
the courts, and ultimately to this Court, to determine whether a challenged
gubernatorial action is ‘legislative’ and therefore ultra vires.”)
Unsurprisingly, this Court has consistently rejected any suggestion that the
separation-of-powers doctrine is a “vestigial relic.” Under 21, 65 N.Y.2d at 356
(internal quotation marks omitted). To the contrary, it has remained vigilant in its
search for any “assumption of [ultra vires] power [that] might erode the genius” of
New York’s system of government. Rapp, 44 N.Y.2d at 167. Indeed, it has
insisted that “we [should] be alive to the imperceptible but gradual increase in the
8
assumption of power properly belonging to another department.” Id. (internal
quotation marks omitted).
Accordingly, this Court has not shied away from invalidating executive
actions that usurped legislative power. Instead, it has curbed executive overreach
in a number of opinions addressing such disparate areas as financial disclosure
requirements, affirmative action, employment discrimination, preferences for
locally based enterprises, and tribal gaming compacts. See Under 21, 65 N.Y.2d at
353; id. at 358 (discussing Broidrick, Fullilove, Rapp, and Koch); Saratoga, 100
N.Y.2d at 824.
Boreali typifies this Court’s approach to separation-of-powers issues. There,
this Court confronted the Public Health Council’s proposed code of tobacco
regulations. 71 N.Y.2d at 6. The opinion set out the basic governing principles in
this area: namely, that the agency’s role “must be deemed limited by its role as an
administrative, rather than a legislative, body” and that, accordingly, “an
administrative agency may not use its authority as a license to correct whatever
societal evils it perceives.” Id. at 6, 9. The Court explained that “administrative
regulatory activity” consists of “interstitial rule making,” and does not include the
“open-ended discretion to choose ends.” Id. at 13, 11 (internal quotation marks
omitted). Judged against that standard, the tobacco code was clearly legislative, so
the Court did not hesitate to strike it down. Id. at 11. Boreali’s rejection of the
9
executive’s ultra vires action is fully consistent with this Court’s separation-of-
powers jurisprudence, so it is not surprising that the Court has continued to cite
Boreali approvingly in later separation-of-powers cases. Med. Soc’y of State of
N.Y. v. Serio, 100 N.Y.2d 854, 865 (2003) (“Boreali is instructive.”); Campagna,
73 N.Y.2d at 243.2
Any attempt to sidestep Boreali, then, is really an attempt to sidestep this
Court’s entire body of separation-of-powers decisions—case law that is consistent,
robust, and firmly anchored in the fundamental structure of New York
government.3
2 By contrast, the only authority the Defendants have mustered in support of their
proposal to sidestep Boreali is a concurrence by a single Judge of this Court.
Defs.’ Br. 30. Although the concurrence accused the majority of “sidestepping”
Boreali, it nevertheless acknowledged that the case did not “directly involve[]” the
separation of powers. Consol. Edison Co. of N.Y., Inc. v. Dep't of Envtl.
Conservation, 71 N.Y.2d 186, 196, 197 (1988) (Bellacosa, J., concurring).
3 Consistent with their broader effort to curtail this Court’s separation of powers
jurisprudence, Defendants offer a Procrustean and illogical interpretation of the
Boreali framework. While their view has vacillated and remains elusive, they
seem to argue that all four Boreali factors must be present for a separation-of-
powers violation to occur. Reply Br. 24 n.6. But Boreali makes clear that the four
factors were merely the “indicator[s]” or “coalescing circumstances” that
persuaded the Court that the line “ha[d] been transgressed” in that particular case.
71 N.Y.2d at 13, 11. Nothing in the opinion even hints at the incongruous position
that each of those factors must be present every time an agency crosses the line.
Id. at 11-14. According to the Defendants, it would be perfectly appropriate for an
agency to construct a regulatory scheme on an entirely clean slate (Factor 2),
relying on its own weighing of economic and social concerns (Factor 1), and
without exercising any special expertise or technical competence (Factor 4)—as
10
II. THIS COURT’S SEPARATION-OF-POWERS JURISPRUDENCE
HAS DEEP ROOTS IN THE AMERICAN LEGAL TRADITION
The separation-of-powers principles articulated by this Court are part of a
rich intellectual tradition that stretches back at least to the Founding Era of the
United States. Leading legal and political thinkers of that period repeatedly
emphasized the fundamental import of confining the executive to its proper role.
The distinction between legislative and executive power “was well
understood, and often discussed, by the founding generation and subsequent legal
actors.” Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 341
(2002). During that period, “the legislative power was understood”—consistently
with this Court’s precedents—“as the authority to make rules for the governance of
society.” Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation
Doctrine’s Death Are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297, 1305 (2003).
In a famous passage, the great political theorist John Locke wrote that “[t]he
power of the legislative, being derived from the people by a positive voluntary
grant and institution, can be no other than what that positive grant conveyed, which
being only to make laws, and not to make legislators, the legislative can have no
power to transfer their authority of making laws and place it in other hands.” John
Locke, The Second Treatise of Government § 141 (emphasis added).
long as the legislature had not attempted to tackle the issue before (Factor 3). That
is untenable.
11
Locke understood that granting legislative power to the executive would
prove disastrous: “it may be too great a temptation to human frailty, apt to grasp at
power, for the same persons who have the power of making laws to have also in
their hands the power to execute them, whereby they may exempt themselves from
obedience to the laws they make, and suit the law, both in its making and
execution, to their own private advantage.” Id. § 143.
Similarly, Baron de Montesquieu “believed that there can be no liberty when
the legislative and executive powers are combined because apprehensions may
arise, lest ‘the same monarch or senate that makes tyrannical laws will execute
them tyrannically.’” Michael B. Rappaport, The Selective Nondelegation Doctrine
and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its
Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 307 (2001)
(quoting Montesquieu, The Spirit of the Laws 157 (Anne M. Cohler et al. eds.,
Cambridge Univ. Press 1989) (1748)).4
Montesquieu’s warning was so compelling that James Madison cited it in
Federalist No. 47. Madison agreed that “[t]he accumulation of all powers . . . in
4 As Professor Rappaport notes, similar sentiments were also expressed by William
Blackstone, among others. Rappaport, 76 Tul. L. Rev. at 306 (collecting sources).
12
the same hands . . . may justly be pronounced the very definition of tyranny.”5
Similarly, in Federalist No. 51, Madison explained “that separate and distinct
exercise of the different powers of government” is “essential to the preservation of
liberty.” John Adams echoed those thoughts, noting that an assembly exercising
all three powers “would make arbitrary laws for their own interest, execute all laws
arbitrarily for their own interest, and adjudge all controversies in their own favor.”
John Adams, “Thoughts on Government” (1776), reprinted in 1 American Political
Writing During the Founding Era, 1760-1805 401, 404 (Charles S. Hyneman &
Donald S. Lutz eds., 1983).
Chief Justice Marshall expressed the same understanding of the subject in
his seminal opinion in Wayman v. Southard, 23 U.S. [10 Wheat.] 1 (1825). As he
explained, “[i]t will not be contended that Congress can delegate to the Courts, or
to any other tribunals, powers which are strictly and exclusively legislative.” Id. at
42. Indeed, Marshall even articulated a test for determining the boundaries of
legislative power that presaged current New York doctrine. He distinguished
between “those important subjects, which must be entirely regulated by the
legislature itself” and “those of less interest” which may be left to others. Id. at 43.
5 Montesquieu was also cited on this point in the Essex Result, “a seminal
American tract on separation-of-powers principles.” Alexander & Prakash, 70 U.
Chi. L. Rev. at 1314 (discussing the Essex Result).
13
In other words, important policy decisions must be left to the legislature—just as
this Court has held.
In short, the Boreali approach to separation-of-powers issues has an
impeccable historical pedigree. Its lineage is directly traceable to some of the most
profound and influential writings in the American legal tradition and should not be
sidestepped.
III. VIGOROUS ENFORCEMENT OF SEPARATION-OF-POWERS
PRINCIPLES IS INDISPENSABLE TO LIBERTY AND SOUND
GOVERNANCE
The separation of powers protects liberty and improves governance in
several fundamental respects. First, it is a bulwark against “unfair discrimination
or other arbitrary action” by the executive. Small, 279 N.Y. at 299; see also
Seignious v. Rice, 273 N.Y. 44, 51 (1936) (denying the executive the “power to
discriminate . . . between individuals in accordance with his own judgment of what
is best in that particular case”). Given the instances in which the soda ban
prohibits and permits identical conduct by vendors operating right next to each
other (see Pls.’ Br. 65-70), the value of separation-of-powers principles in
protecting against discrimination and arbitrariness is evident in this case.
As James Madison noted in Federalist No. 57, legislators “can make no law
which will not have its full operation on themselves and their friends,” and this fact
deters them from adopting “oppressive measures.” By contrast, as Professor
14
Rappaport explains, an executive “exercis[ing] legislative power . . . could pass
harsh and unfair laws knowing that it can decide against whom to enforce these
laws.” Rappaport, 76 Tul. L. Rev. at 307-08. This Court was quite right to
observe that, without standards set by the legislature, “there is no government of
law, but only government by men left to set their own standards, with resultant
authoritarian possibilities.” Rapp, 44 N.Y.2d at 162.6
Enforcing the separation of powers also protects liberty in another way: by
fostering bicameralism and promoting other elements of constitutional design that
make passing legislation more difficult. As Professors Prakash and Alexander
note, “transfer[ring] all substantive policy discretion to the executive” effectively
bypasses such procedures. Alexander & Prakash, 70 U. Chi. L. Rev. at 1301. But
the difficulties inherent in passing legislation “are an important guarantor of
liberty,” because they require a consensus before government power can be
brought to bear against an individual. See Cass R. Sunstein, Nondelegation
Canons, 67 U. Chi. L. Rev. 315, 320 (2000). This consensus-building requirement
serves as a check on heavy-handed and paternalistic policies such as the soda ban,
which curtail consumer freedom without adequate justification.
6 Sadly, world history shows that the Court’s reference to “authoritarian
possibilities” is no mere rhetorical flourish. As Professor Sunstein has noted, other
countries have been forced to adopt explicit nondelegation doctrines in the wake of
abuses by authoritarian regimes. Cass R. Sunstein, Nondelegation Canons, 67 U.
Chi. L. Rev. 315, 320 n. 29 (2000).
15
In addition, the need for consensus tends to “reduce the risk that self-
interested representatives, with narrow agendas of their own, would use the
lawmaking process to promote their parochial interests”—making the difficulty of
passing legislation a key mechanism for limiting “efforts by well-organized private
groups to redistribute wealth or opportunities in their favor.” Id. at 321 (citing
Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative
Delegation, 68 Cornell L. Rev. 1, 63-67 (1982)).
Of course, the separation of powers also promotes democratic
accountability. As noted above, Defendants wish to circumvent the political
process—but it is distinctly anti-democratic to suggest that regulatory policy
decisions must be insulated from politics. See John F. Manning & Matthew C.
Stephenson, Legislation and Regulation 382 (2010). “[D]emocratic accountability
. . . serves extraordinarily valuable functions, chief among them allowing the
people to select the leaders they want and to check legislative abuses through the
threat of electoral retaliation.” Id. Without the separation of powers, however,
accountability is diluted or defeated altogether. See id. As John Hart Ely put it,
“the common case of nonaccountability involves . . . a situation where the
legislature . . . has refused to draw the legally operative distinctions, leaving that
chore to others who are not politically accountable.” John Hart Ely, Democracy
and Distrust: A Theory of Judicial Review 130-31 (1980).
16
Legislators often “go to great lengths to use delegation to avoid blame” for
various decisions. David Schoenbrod, Delegation and Democracy: A Reply to My
Critics, 20 Cardozo L. Rev. 731, 745 (1999). This delegation tactic allows
“controversial choices [to] be made without votes being taken and responsibility
being publicly assumed” by legislators. David Schoenbrod, The Delegation
Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1244
(1985). As a result, decisionmaking is made “less visible and responsibility more
attenuated”; it becomes virtually impossible for a citizen to ascertain a legislator’s
position. Id. at 1244-45. In the end, excessive delegation can allow legislators to
“shirk[] responsibility for some of the most fundamental political questions
affecting our society.” Harold J. Krent, Delegation and Its Discontents, 94 Colum.
L. Rev. 710, 714 (1994) (reviewing David Schoenbrod, Power Without
Responsibility (1993)). This Court’s careful enforcement of separation-of-powers
principles ensures that such an outcome cannot come to pass in New York.
In short, the separation of powers serves a range of crucial goals. Some
critics, however, have charged that enforcing separation-of-powers principles is
incompatible with effective regulation. Nothing could be further from the truth.
This Court’s separation-of-powers jurisprudence requires only that “critical
policy decisions” be made by the Legislature—the “practical” aspects of
effectuating the policy decisions can be left to the executive. New York State
17
Health Facilities Ass’n, Inc. v. Axelrod, 77 N.Y.2d 340, 349 (1991). Indeed, under
the “commonsense” approach this Court has always followed, Bourquin, 85
N.Y.2d at 785, the degree of “flexibility allowed the executive . . . depends upon
the nature of the problem to be solved.” Rapp, 44 N.Y.2d at 163.
In making that assessment, the Court has evaluated whether it is “practicable
for the Legislature itself to set precise standards.” Id. In especially complex areas,
such as nuclear regulation, the Court has concluded that it is simply not possible
for the legislature to anticipate the precise characteristics of the problem in
advance. The executive may be allowed a bit more leeway in such areas, because
they are “simply incapable of statutory completion.” Citizens for an Orderly
Energy Policy, Inc. v. Cuomo, 78 N.Y.2d 398, 410 (1991) (internal quotation
marks omitted). Absurdly, Defendants seem to suggest that the regulation of
sugary drinks is such an area. See Defs.’ Br. 48. But the soda ban obviously has
more in common with the tobacco code rejected in Boreali than it does with
nuclear regulation. If Defendants are not willing to trust the legislature with
permissible cup size, they would not trust it with anything.
In all events, the doctrine of separation of powers as this Court has actually
applied it fully accommodates effective regulation. The legislature must make the
policy decisions in the first instance, but the executive may be allowed to work out
the details; both branches can exercise the full extent of their expertise and
18
legitimate authority.7 The fact that no crisis of insufficient regulation has befallen
New York, even as this Court has vigilantly enforced the separation of powers,
shows that the two concepts are compatible.
If any additional proof were needed that the separation of powers is not
inimical to sound regulation, one need only consult the experiences of other
jurisdictions. Many other high courts police separation-of-powers issues just as
diligently as this Court does. See Jim Rossi, Institutional Design and the Lingering
Legacy of Antifederalist Separation of Powers Ideals in the States, 52 Vand. L.
Rev. 1167, 1193-98 (1999) (collecting cases from Arizona, Florida, Illinois,
Kentucky, Massachusetts, Montana, Nebraska, Nevada, New Hampshire, New
Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, South Carolina, Texas,
Virginia, and West Virginia, as well as New York). All of these courts agree that,
far from undermining good governance, the separation of powers is absolutely
crucial to it. This Court should continue to “join those states in a commitment to
7 Defendants have a very different function in mind for the Board of Health.
According to them, the Board has “concurrent jurisdiction” over health matters
with the City Council, so the two entities should legislate “in tandem.” Reply Br.
29-30. In other words, Defendants believe that the Board’s legislative authority in
this area is limited only by the Board’s own willingness to “act[] in harmony” with
the City Council. Id. at 6. Contrary to their half-hearted denials, then, Defendants’
position is precisely that the Board’s legislative powers are “‘unchecked.’” Ibid.;
see id. at 10 (referring to the Board’s “extraordinary legislative power”).
19
the separation of powers and constitutional government.” Saratoga, 100 N.Y.2d at
824.
CONCLUSION
For the reasons stated above, amici curiae Washington Legal Foundation
and Allied Educational Foundation respectfully request that this Court uphold the
order of the Appellate Division.
Dated: April 24, 2014 Respectfully submitted,
~~
Sarah R. Prins (pro hac vice admission pending)
ROBBINS, RUSSELL, ENGLERT, 0RSECK,
UNTEREINER & SAUBER LLP
1801 K Street, N.W., Suite 411
Washington, D.C. 20006
Telephone: (202) 775-4500
Facsimile: (202) 775-4510
Of Counsel:
Cory L. Andrews
Richard A. Samp
WASHINGTON LEGAL FOUNDATION
2009 Massachusetts Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 588-0302
Roy T. Englert, Jr.
Alex Potapov
ROBBINS, RUSSELL, ENGLERT, 0RSECK,
UNTEREINER & SAUBER LLP
1801 K Street, N.W., Suite 411
Washington, D.C. 20006
Telephone: (202) 775-4500
Facsimile: (202) 775-4510
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