APL-2013-00291
New York County Clerk’s Index No. 653584/12
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 Articles 78 and 30 of the
Civil Practice Law and Rules
—against—
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 AMICUS CURIAE DEAN ERIC LANE
IN SUPPORT OF PLAINTIFFS-PETITIONERS-RESPONDENTS
April 25, 2014
Noel J. Francisco
Ryan D. Newman
William D. Coglianese
Anthony J. Dick
Sarah A. Hunger
Matthew R. McGuire
JONES DAY
51 Louisiana Avenue NW
Washington, DC 20001
Tel.: (202) 879-3939
Fax: (202) 626-1700
ajdick@jonesday.com
Counsel for Amicus Curiae
Dean Eric Lane
i
TABLE OF CONTENTS
Page
STATEMENT OF INTEREST ................................................................................ 1
PRELIMINARY STATEMENT .............................................................................. 2
ARGUMENT............................................................................................................ 4
I. The New York City Charter Forbids Administrative Agencies
From Exercising Unconstrained Law-Making Authority. ............................. 4
A. The City Charter Clearly Separates The Legislative
And Executive Powers Of The City Government. ............................... 5
B. This Court Has Long Recognized That Administrative
Agencies Can Only Act Within The Scope Of Their
Delegated Authority. ............................................................................ 8
II. Recent Reforms To The New York City Charter Remove
Any Doubt That Agencies Cannot Exercise Unconstrained
Law-Making Authority. ................................................................................ 10
III. Because The Board Of Health Is An Administrative Agency
Within The Executive Branch, It Does Not Have
Unconstrained Law-Making Authority. ....................................................... 17
A. The Board Of Health Is An Executive-Branch
Administrative Agency. ..................................................................... 18
B. The Board Can Only Exercise Delegated Rule-Making
Authority, Not Legislative Authority. ................................................ 21
C. Defendants’ Position Is Contrary To The Structural
Reforms Adopted To Ensure That Only The City
Council Wields Legislative Authority. .............................................. 24
CONCLUSION ...................................................................................................... 25
ii
TABLE OF AUTHORITIES
Page
CASES
Bd. of Estimate of City of N.Y. v. Morris,
485 U.S. 986 (1988) ............................................................................................ 14
Bd. of Estimate of City of N.Y. v. Morris,
489 U.S. 688 (1989) ............................................................................................ 14
Boreali v. Axelrod,
71 N.Y.2d 1 (1987) ......................................................................................passim
Campagna v. Shaffer,
73 N.Y.2d 237 (1989) ................................................................................. 8, 9, 21
Grossman v. Baumgartner,
17 N.Y.2d 345 (1966) ......................................................................................... 24
In re Bakers Mut. Ins. Co. of N.Y.,
301 N.Y. 21 (1950) ............................................................................................. 21
Levine v. Whalen,
39 N.Y.2d 510 (1976) ........................................................................................... 8
Med. Soc’y of State v. Serio,
100 N.Y.2d 854 (2003) ............................................................................. 9, 22, 23
Metropolitan Bd. of Health v. Heister,
37 N.Y. 661 (1868) ............................................................................................. 24
Morris v. Bd. of Estimate,
647 F. Supp. 1463 (E.D.N.Y. 1986) ................................................................... 13
Morris v. Bd. of Estimate,
831 F.2d 384 (2d Cir. 1987) ............................................................................... 13
N.Y. State Health Facilities Ass’n, Inc. v. Axelrod,
77 N.Y.2d 340 (1991) ......................................................................................... 22
N.Y. Statewide Coal. of Hispanic Chambers of Commerce v.
N.Y.C. Dep’t of Health & Mental Hygiene,
970 N.Y.S.2d 200 (N.Y. App. Div. 2013) ............................................................ 2
People v. Blanchard,
288 N.Y. 145 (1942) ........................................................................................... 24
Rent Stabilization Ass’n of N.Y.C. v. Higgins,
83 N.Y.2d 156 (1993) ................................................................................. 7, 9, 22
iii
Subcontractors Trade Ass’n v. Koch,
62 N.Y.2d 422 (1984) ........................................................................................... 6
Under 21 v. City of New York,
65 N.Y.2d 344 (1985) ................................................................................... 4, 6, 8
CHARTER PROVISIONS
N.Y.C. CHARTER § 3 .................................................................................................. 6
N.Y.C. CHARTER § 6 .................................................................................................. 6
N.Y.C. CHARTER § 21 .............................................................................. 5, 10, 21, 22
N.Y.C. CHARTER § 28 ................................................................................................ 5
N.Y.C. CHARTER § 551 ............................................................................................ 18
N.Y.C. CHARTER § 553 ...................................................................................... 18, 20
N.Y.C. CHARTER § 554 ............................................................................................ 18
N.Y.C. CHARTER § 556 ............................................................................................ 22
N.Y.C. CHARTER § 558 ............................................................................................ 21
N.Y.C. CHARTER § 1041 ............................................................................................ 7
N.Y.C. CHARTER § 1043 ............................................................................................ 7
CONSTITUTIONAL PROVISIONS
N.Y. CONST. Article IX, § 1 ..................................................................................... 10
N.Y. CONST. Article XII, § 2 ................................................................................... 19
STATUTES AND REGULATIONS
1866 N.Y. Laws, Chapter 74, § 1 ............................................................................ 18
1866 N.Y. Laws, Chapter 74, § 2 ............................................................................ 19
1866 N.Y. Laws, Chapter 74, § 4 ............................................................................ 19
1866 N.Y. Laws, Chapter 74, § 9 ............................................................................ 19
1866 N.Y. Laws, Chapter 74, § 12 .......................................................................... 19
1870 N.Y. Laws, Chapter 137, § 29 ........................................................................ 19
1870 N.Y. Laws, Chapter 137, § 30 ........................................................................ 19
1870 N.Y. Laws, Chapter 137, § 31 ........................................................................ 19
1870 N.Y. Laws, Chapter 137, § 43 ........................................................................ 19
iv
1870 N.Y. Laws, Chapter 137, § 90 ........................................................................ 19
N.Y. MUN. HOME RULE § 36 .................................................................................... 14
R.C.N.Y. Title 24, § 81.53 ....................................................................................... 21
OTHER AUTHORITIES
FINAL REPORT OF THE N.Y.C. CHARTER REVISION COMM’N,
JAN. 1989 - NOV. 1989 (1990) ................................................................. 15, 16, 17
Frederick A.O. Schwarz, Jr. & Eric Lane, The Policy and Politics of
Charter Making: The Story of New York City’s 1989 Charter,
42 N.Y.L. SCH. L. REV. 723 (1998) .............................................................passim
N.Y.C. Dep’t of Health & Mental Hygiene, 2013 Notices of Adoption,
available at http://goo.gl/20VV99 ...................................................................... 20
PRELIMINARY REPORT AND DRAFT OF PROPOSED CHARTER
FOR THE CITY OF NEW YORK (1936) ................................................................... 20
REPORT OF THE N.Y.C. CHARTER REVISION COMM’N,
DEC. 1986 - NOV. 1988 (1989) ................................................................ 11, 14, 20
WALLACE S. SAYRE & HERBERT KAUFMAN, GOVERNING NEW YORK CITY:
POLITICS IN THE METROPOLIS (W.W. Norton & Co. 1965) ................................ 12
1
Dean Eric Lane respectfully submits this brief, accompanied by his motion
for amicus curiae relief under N.Y. Court of Appeals Rules of Practice §§ 500.12
and 500.23, in support of Plaintiffs-Petitioners-Respondents 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 (collectively, “Plaintiffs”) in the above-captioned action.
STATEMENT OF INTEREST
This appeal poses fundamental questions about the structure of New York
City’s government and the separation of powers. Amicus Eric Lane has unique
insight into these questions, grounded in his personal experience as executive
director and counsel to two successive Charter Revision Commissions that, during
the late 1980s, crafted sweeping modifications to the City’s government. In
addition, he currently serves as the Dean of the Maurice A. Deane School of Law
at Hofstra University and as the Eric J. Schmertz Distinguished Professor of Public
Law and Public Service. He regularly teaches courses in, among other things,
constitutional law, administrative law, and the legislative process. Dean Lane
submits this brief to aid the Court in understanding the nature and source of the
New York City Board of Health’s authority.
2
PRELIMINARY STATEMENT
This case is about the allocation of power in the City of New York. The
parties agree that the specific question before the Court is whether the New York
City Board of Health has the power to enact a rule banning many businesses from
selling soda and other sugary drinks in containers larger than 16 ounces. But the
parties disagree on the standards the Court should apply in answering that question.
Historically, this Court has analyzed constitutional challenges to agency
action by asking whether the action is beyond the scope of the agency’s delegated
authority, and hence unlawful as a violation of the separation of powers. See
generally Boreali v. Axelrod, 71 N.Y.2d 1 (1987). Both courts below accepted
Plaintiffs’ argument that this analysis applies, and those courts found that the
Board had gone beyond its delegated authority by “engag[ing] in broad-based
public policy determinations.” N.Y. Statewide Coal. of Hispanic Chambers of
Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene, 970 N.Y.S.2d 200, 206-
07 (N.Y. App. Div. 2013) (internal quotation marks and citation omitted). But
Defendants contend that separation-of-powers limitations are inapplicable here
because, they say, the Board has authority in matters of public health to exercise
the powers of a legislature—even though they concede that the Board is no
legislature. Defs.’ Reply Br. at 4. Under Defendants’ view, the Board is
unconstrained in its authority to regulate matters pertaining to public health.
3
Defendants’ position flies in the face of one of the most venerable doctrines
in all of American law: the separation of powers. This conclusion follows directly
from several very basic—and entirely uncontroversial—premises: The New York
City Charter adheres to traditional separation-of-powers principles by assigning the
legislative power to the legislative branch and the executive power to the executive
branch, by placing administrative agencies within the executive branch, and by
providing that agencies can act only within the scope of authority that is
specifically delegated to them. The Board is, and in fact can only be, part of the
executive branch. Therefore, the Board—just like any other agency—cannot
exercise the legislative power, and can only exercise delegated authority in
accordance with basic separation-of-powers limitations.
The fundamental building blocks of administrative law put to rest
Defendants’ argument that the Board is somehow not subject to the usual standards
for assessing challenges to agency action. And the applicability of those standards
is further confirmed by New York City’s own recent history, for only 25 years ago
the City adopted substantial revisions to its Charter specifically for the purpose of
clarifying that the legislative power is vested exclusively in the City’s legislative
branch—namely, the City Council. As executive director and counsel to the two
Charter Revision Commissions that crafted these revisions, amicus has special
insight into the implications of those reforms for this case. Through these reforms,
4
the people of New York City—who voted to accept both Commissions’ Charter
revisions—reaffirmed the very line that Defendants now ask this Court to erase.
Although it is not the purpose of this amicus brief to take a position on how
the Court should resolve the ultimate question regarding the Board’s authority to
enact the soda ban, there is no doubt that this question must be resolved using the
same standards that this Court always applies in considering challenges to agency
action. Specifically, the Court should ask whether the soda ban fits within the
scope of the Board’s delegated authority or instead reflects a usurpation of the City
Council’s legislative power.
ARGUMENT
I. The New York City Charter Forbids Administrative Agencies From
Exercising Unconstrained Law-Making Authority.
In establishing the contours of the City’s government, the New York City
Charter adheres to traditional separation-of-powers principles by “provid[ing] for
distinct legislative and executive branches.” Under 21 v. City of New York, 65
N.Y.2d 344, 356 (1985). The Charter also makes clear that agencies exist within
the City’s executive branch and answer to the Mayor. As a result, this Court has
long recognized that agencies cannot wield legislative power, and instead are
constrained by the specific delegation of authority they have received.
5
A. The City Charter Clearly Separates The Legislative And
Executive Powers Of The City Government.
1. The New York City Charter establishes a clear division between the
legislative and executive powers. The Charter expressly provides that the City
Council “shall be the legislative body of the city” and is “vested with the
legislative power of the city.” N.Y.C. CHARTER § 21 (emphasis added). The
Charter does not vest “the legislative power” in any other body, and specifically
protects against encroachments on the Council’s authority: “[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.
The Charter also establishes the sweeping nature of the Council’s authority
as the City’s legislative body. Most fundamentally, the Council is empowered to
enact the laws of the City:
The council in addition to all enumerated powers shall have power to
adopt local laws which it deems appropriate, which are not
inconsistent with the provisions of this charter or with the constitution
or laws of the United States or this state, for the good rule and
government of the city; for the order, protection and government of
persons and property; for the preservation of the public health,
comfort, peace and prosperity of the city and its inhabitants; and to
effectuate the purposes and provisions of this charter or of the other
law relating to the city.
Id. § 28(a). The Council possesses a number of other powers as well (see N.Y.C.
CHARTER §§ 28-31), all flowing from the Council’s foundational role as the City’s
lawmaking body.
6
2. The Charter vests the City’s executive power, by contrast, in the Mayor,
whom the Charter designates as “the chief executive officer of the city.” Id. § 3.
In this capacity, the Mayor is “empowered to implement and enforce legislative
pronouncements emanating from the Council.” Subcontractors Trade Ass’n v.
Koch, 62 N.Y.2d 422, 427 (1984). The Mayor cannot, of course, exercise the
Council’s authority to enact laws—but he is responsible for ensuring that those
laws are enforced. Under 21, 65 N.Y.2d at 356.
3. The Charter also makes clear where administrative agencies fit within
this separation of powers: the executive branch. Agencies are placed under the
authority of the Mayor, whom the Charter requires to “appoint the heads of
administrations, departments, all commissioners and all other officers not elected
by the people.” N.Y.C. CHARTER § 6(a). The Charter also generally authorizes the
Mayor to remove those public officials from office, unless some other provision of
law establishes a different mechanism for removal. Id. § 6(b). These
administrative heads thus answer directly to the Mayor.
In addition, the Charter includes detailed provisions establishing the nature
of agency authority and making clear that this authority is unequivocally executive
in nature. These provisions, known as the City Administrative Procedure Act
(CAPA), apply to all City agencies, which are defined in part as “any one or more
of the elected or appointed officers provided for in this charter and any other
7
official or entity which is acting” under the authority of such elected or appointed
officers. Id. § 1041(2). Agency authority is necessarily limited in scope: CAPA
authorizes agencies to enact regulations only as “necessary to carry out the powers
and duties delegated to [them] by or pursuant to federal, state or local law.” Id.
§ 1043(a). Agencies are thus “arm[s] of the executive branch,” Rent Stabilization
Ass’n of N.Y.C. v. Higgins, 83 N.Y.2d 156, 169 (1993), that (1) are headed by
elected or appointed officials, and (2) exercise specifically delegated authority.
In implementing their delegated authority, agencies must comply with the
detailed procedural requirements set forth in CAPA. Most importantly, agencies
must allow a period of public comment on all proposed rules, and generally must
conduct a public hearing before promulgating a final rule. N.Y.C. CHARTER
§ 1043(b)(1), (e). The Mayor’s office also must review every rule before it is
published. Id. § 1043(d). Final rules are published in the Rules of the City of New
York, not in the Administrative Code (which codifies the laws enacted by the City
Council). Id. § 1043(f)(1)(c).
Several foundational principles are thus evident from the City Charter.
First, the Charter divides the powers of government between the legislative and
executive branches. The Council exercises the former, the Mayor the latter, and
neither can usurp the other’s authority. Second, administrative agencies are under
the authority of the Mayor, who appoints and removes their heads, monitors their
8
operations, and reviews their rules. Third, in exercising the rule-making function,
agencies act pursuant to specifically delegated authority.
B. This Court Has Long Recognized That Administrative Agencies
Can Only Act Within The Scope Of Their Delegated Authority.
For the separation of powers to mean anything, agencies must act only in
accordance with the specific delegation of authority they have received—anything
else would result in the agency usurping the legislative power, which has been
vested solely in the City Council. To ensure that the separation of powers is not
circumvented in this manner, the Court has recognized in the context of the State
Constitution—which, like the New York City Charter, operates according to
traditional separation-of-powers principles (Under 21, 65 N.Y.2d at 356)—a
distinction between delegable agency authority and the legislative power. The
“law-making functions” cannot be shifted away from the legislative body, but there
is no “prohibition against the delegation of power, with reasonable safeguards and
standards, to an agency or commission to administer the law as enacted by the
Legislature.” Boreali, 71 N.Y.2d at 10 (quoting Levine v. Whalen, 39 N.Y.2d 510,
515 (1976)). The power of agencies, in other words, is limited. Agencies
necessarily “act pursuant to specific grants of authority conferred by their
creator”—which, in New York City, is the Charter itself. Campagna v. Shaffer, 73
N.Y.2d 237, 242 (1989).
9
In elucidating the line between proper agency action and unlawful
encroachments on legislative authority, this Court has emphasized that the terms of
an agency’s delegated powers are paramount. “An agency is ‘clothed with those
powers expressly conferred by its authorizing statute, as well as those required by
necessary implication.’” Id. Most often, this delegated authority includes the
power to enact regulations pertaining to certain defined subjects. But such a
delegation of rule-making power does not convert an agency into an unelected
legislature. “As an arm of the executive branch of government, an administrative
agency may not, in the exercise of rule-making authority, engage in broad-based
public policy determinations.” Rent Stabilization Ass’n, 83 N.Y.2d at 169. This
Court has thus viewed it as “axiomatic” that an “administrative officer has no
power to declare through administrative fiat that which was never contemplated or
delegated,” nor can “[a]n agency … by its regulations effect its vision of societal
policy choices.” Campagna, 73 N.Y.2d at 242-43.
This distinction between rule-making and law-making has significant
implications for democratic self-governance. The Council, as the City’s elected
legislative body under the State Constitution (N.Y. CONST. art. IX, § 1(a)) and City
Charter (N.Y.C. CHARTER § 21), wields broad authority to make decisions that
impact virtually all aspects of life in the City. If residents disfavor the Council’s
policy judgments, they can express this by voting out the Council members they
10
disagree with and replacing them with members who will follow their preferred
course. Administrative agencies, by contrast, have none of these safeguards.
Headed by appointees and staffed by ordinary employees, agencies are insulated
from the people. It is therefore significant that, while the Charter delegates
authority to agencies that specialize in particular subject-matters, it does not vest
any unfettered law-making power in unelected agency officials. See N.Y.C.
CHARTER § 21; see also, e.g., Boreali, 71 N.Y.2d at 9 (“[E]nactments conferring
authority on administrative agencies in broad or general terms must be interpreted
in light of the limitations that the Constitution imposes.”).
II. Recent Reforms To The New York City Charter Remove Any Doubt
That Agencies Cannot Exercise Unconstrained Law-Making Authority.
The separation-of-powers principles discussed above are well-established,
and those principles alone are sufficient to resolve the threshold question as to the
nature of the Board’s authority. Moreover, these foundational principles are
underscored by recent reforms to the City Charter, which were expressly designed
to ensure that the legislative power is vested solely in the City Council and that no
other body can exercise this law-making power.
To understand the significance of these reforms, it is necessary to review
developments that occurred during the late 1980s, when two successive Charter
Revision Commissions crafted amendments to the Charter that, once ratified by
voters, represented “the broadest and most radical changes to the[] Charter since
11
1901.” Frederick A.O. Schwarz, Jr. & Eric Lane, The Policy and Politics of
Charter Making: The Story of New York City’s 1989 Charter, 42 N.Y.L. SCH. L.
REV. 723, 729 (1998) (hereinafter Charter Making).
1. This overhaul of the City’s government began with events surrounding a
unique entity known as the Board of Estimate. The Board of Estimate had “been
one of the city’s key governing institutions since the turn of the century.” REPORT
OF THE N.Y.C. CHARTER REVISION COMM’N, DEC. 1986 - NOV. 1988 at 14 (1989)
(hereinafter 1986-1988 REPORT). This body had no equal in the City’s government
because, unlike any other organ of City government, it had arrogated to itself the
power to exercise both executive and legislative authority. For example, the Board
of Estimate retained control of the appropriations process and the City’s zoning
law (paradigmatic legislative responsibilities), while also exercising authority over
land-use and contracting decisions (standard executive powers). Charter Making,
42 N.Y.L. SCH. L. REV. 723 at 767; see also 1986-1988 REPORT at 14 (noting the
Board’s various powers). Due to “the inclusiveness of its powers,” the Board of
Estimate “occupie[d] the center of gravity in the city’s political process.”
WALLACE S. SAYRE & HERBERT KAUFMAN, GOVERNING NEW YORK CITY: POLITICS
IN THE METROPOLIS 626-27 (W.W. Norton & Co. 1965) (hereinafter GOVERNING
NEW YORK CITY).
12
Reflective of—and contributing to—its power in the City, the Board of
Estimate consisted of the City’s most powerful executive and legislative officials:
the Mayor, the comptroller, the City Council president, and the presidents of the
five boroughs. Charter Making, 42 N.Y.L. SCH. L. REV. 723 at 766. The Mayor,
comptroller, and City Council president each received two votes on all decisions,
while the borough presidents each received only one vote. Id. In large part due to
its unification of the eight “most influential elected officials in the city
government,” the Board of Estimate, unlike any other agency, was able to “steadily
acquir[e] more formal power [and] regularly enhanc[e] its informal powers,
increasingly fulfilling its own expectations as an institution.” GOVERNING NEW
YORK CITY at 627. This arrogation of power was “achieved most clearly at the
expense of … the [City] Council,” whose functions the Board of Estimate had
“swallowed up.” Id. at 627, 649. Over time, the result of the Board’s
accumulation of power was that, contrary to the City Charter, “New York City
ha[d] no [] legislative institution” and instead had “a caucus of officials, acting ex
officio as members of the Board of Estimate.” Id. at 650.
2. This paradigm was upended in 1986, when a federal district court
declared the Board of Estimate unconstitutional. Morris v. Bd. of Estimate, 647 F.
Supp. 1463 (E.D.N.Y. 1986). This decision was not made on separation-of-powers
grounds; rather, the court held that the Board of Estimate violated the Equal
13
Protection Clause’s “one person, one vote” principle, because all five borough
presidents received an equal vote in Board of Estimate decisions, regardless of the
size of the population each president represented.
The significance of the district court’s decision is difficult to overstate.
Given the Board of Estimate’s central role in New York City’s governance, its
newly established invalidity meant that changes needed to be made immediately.
Although the City appealed the district court’s decision, officials recognized that
“there was a substantial chance the defense would fail.” Charter Making, 42
N.Y.L. SCH. L. REV. at 736. As a consequence, within one month of the district
court’s decision, Mayor Ed Koch appointed the first of two Charter Revision
Commissions to determine how the City would respond. Id. Amicus served as
counsel and executive director to both of those Commissions.
The first commission—known as the Ravitch Commission (after its chair,
Richard Ravitch)—quickly got to work assessing how to respond to the district
court’s decision, which was soon affirmed by the Second Circuit. Morris v. Bd. of
Estimate, 831 F.2d 384 (2d Cir. 1987), opinion corrected, 842 F.2d 23 (2d Cir.
1987). But these efforts were interrupted by the Supreme Court’s unexpected
decision to grant review of the case. See Bd. of Estimate of City of N.Y. v. Morris,
485 U.S. 986 (1988). Because the Ravitch Commission was required by law to
disband before the Supreme Court would issue its decision, see N.Y. MUN. HOME
14
RULE § 36(5)(b), Mayor Koch appointed a second Charter Revision Commission in
1989, this time chaired by Frederick A.O. Schwarz, Jr. (“the Schwarz
Commission”), to pick up where the Ravitch Commission left off. Charter
Making, 42 N.Y.L. SCH. L. REV. at 737. The Ravitch Commission accordingly
decided to refrain from making any decision as to the future of the Board of
Estimate, instead leaving this task for the Schwarz Commission to handle after the
Supreme Court issued its decision.1
3. Soon after the Schwarz Commission convened, the Supreme Court
affirmed the Second Circuit’s decision, thus confirming once and for all the
Board’s invalidity. Bd. of Estimate of City of N.Y. v. Morris, 489 U.S. 688 (1989).
The Commission thus faced an immediately pressing question: should the Board
of Estimate be reconstituted in a manner consistent with the Equal Protection
Clause, or abandoned altogether? Because the Supreme Court invalidated the
Board of Estimate based only on its voting structure, it was conceivable that the
Commission could simply retool the Board’s voting structure to cure the
representational problems, without necessarily altering the Board’s unique
combination of legislative and executive authority. Charter Making, 42 N.Y.L.
SCH. L. REV. at 765-66.
1 The Ravitch Commission instead focused its efforts on crafting more discrete revisions
to the City’s charter. One of these revisions was the addition of the CAPA, discussed supra at
I.A.3. The Ravitch Commission’s proposed revisions—including the addition of CAPA—were
ratified by voters in 1989. See 1986-1988 REPORT at 11.
15
Ultimately, the Commission decided that “the Board of Estimate had flaws
beyond its representational illegality.” Charter Making, 42 N.Y.L. SCH. L. REV. at
771; see also FINAL REPORT OF THE N.Y.C. CHARTER REVISION COMM’N, JAN.
1989 - NOV. 1989, at 8 (1990) (hereinafter 1989 REPORT) (reporting that “members
of the Commission and various witnesses raised policy questions about the
governmental value of the Board of Estimate”). Chief among these problems was
that the Board of Estimate, by wielding legislative authority, “threw a stunting
shadow across the City’s legislative branch—the City Council.” Charter Making,
42 N.Y.L. SCH. L. REV. at 771; see also id. at 781 (“Among the reasons for the
historic weakness of the Council was the presence and prestige of the Board [of
Estimate], with its jurisdiction over items that normally would be legislative.”).
This, in turn, represented a threat to the separation of powers in New York City:
by so weakening the City Council, the Board of Estimate “impeded the healthy
development of countervailing power to the mayoralty.” Id. at 771-72. The
Commission thus came to the conclusion that eliminating the Board of Estimate
was an essential step in restoring democratic self-government and a functional
system of checks and balances in New York City’s government.
Once the Commission made this threshold decision not to revive the Board
of Estimate, it became clear that it would need “to examine the City government’s
structure and all of its decision-making processes.” Id. at 775. In doing so, the
16
Commission established as one of its guiding principles the need to “[b]alance
power” between the City’s legislative and executive branches, which had long
been melded in the Board of Estimate. 1989 REPORT at 4. This principle became
especially important without the Board of Estimate, as the Commission recognized
that only the City Council could serve as an effective check on the significant
power afforded to the Mayor. “Balancing and checking power would be
particularly important in a world without a Board of Estimate and in a City without
a flourishing two-party system.” Charter Making, 42 N.Y.L. SCH. L. REV. at 752.
4. With these considerations in mind, the Schwarz Commission decided that
merely eliminating the Board of Estimate would not solve the structural problems
in the City’s government—rather, it was necessary to “ma[k]e the City Council the
sole legislative body of the City.” Id. at 828. Except for the decision not to
resurrect the Board of Estimate, this decision to “empower and expand the [City]
Council” was the Schwarz Commission’s most significant contribution to City
governance. Id. at 776. Restoring the Council’s authority was an essential step in
strengthening the City’s separation of powers: “For a legislature to balance and
check the executive branch is the American norm. For all the messiness of
legislatures, for all the criticism of them, the basic concept is readily understood
and reasonably accepted…. To accommodate this, [the Commission] needed to
focus on the legislative branch of City government.” Id. at 777. In short, the 1989
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Charter reaffirmed the City Council’s role as the City’s “local lawmaking body.”
1989 REPORT at 16.
The Schwarz Commission’s revisions, which were ratified by the people of
New York City in November 1989, “eliminated the Board of Estimate” and
“shifted all of its legislative powers to an enlarged City Council.” 1989 REPORT at
1 (emphasis added). Coupled with the comprehensive administrative-procedure
reform the Ravitch Commission had successfully proposed a year earlier, the New
York City voters reaffirmed their desire to eliminate governing bodies holding both
legislative and executive authority and to maintain a clear and consistent separation
of the legislative and the executive power in the City government.
III. Because The Board Of Health Is An Administrative Agency Within The
Executive Branch, It Does Not Have Unconstrained Law-Making
Authority.
The foregoing points lead inexorably to one conclusion in this case: the
Board of Health is an administrative agency that can only exercise limited,
delegated authority and is therefore subject to the same separation-of-powers
principles as any other agency. See Boreali, 71 N.Y.2d at 1. Defendants’
contention that the Board actually wields “legislative authority,” Defs.’ Reply Br.
at 4, cannot be reconciled with the separation of powers that is embodied in the
City Charter and confirmed by the recent reforms aimed at ensuring that only the
City Council can exercise the legislative power.
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A. The Board Of Health Is An Executive-Branch Administrative
Agency.
The Board of Health is—and has been for virtually its entire history—an
administrative agency situated within the City’s executive branch. It is not by any
measure equivalent to the Board of Estimate, exercising both executive and
legislative powers. This is evident from the text of the City Charter itself, which
assigns the Board to the Department of Health and Mental Hygiene, an executive-
branch department. N.Y.C. CHARTER § 553(a). The Board’s members—the
Department commissioner, the chairperson of the Mental Hygiene Advisory Board,
and nine other members—are all appointed to six-year terms by the Mayor. Id.
§§ 551(a), 553(b). And only the Mayor has the authority to remove those officials
prior to the end of their appointed term. Id. § 554.
The Board’s role as an executive-branch agency is nothing new: it has been
this way almost since its inception. The Board came into existence in 1866, when
the State legislature created the Metropolitan Board of Health. 1866 N.Y. Laws,
Ch. 74, §§ 1-33. This entity was charged with “the greater protection and security
of health and life” within the “Metropolitan police district of the State of New
York” (an area around the modern New York City). Id. §§ 1, 2, 12. And although
the State initially retained supervisory authority over the Metropolitan Board, this
State oversight only lasted four years. Id. §§ 2, 4, 9. In 1870, the State legislature
enacted amendments to the New York City Charter that placed the Board under the
19
authority of the City’s executive branch. See 1870 N.Y. Laws, Ch. 137, §§ 29-30,
90. Like the present-day Charter, the 1870 version established the Board as the
head of the Health Department (the predecessor to today’s Department of Health
and Mental Hygiene), id. § 90, with members—the City’s police commissioners,
the health officer of the port, and four additional officers—who were all appointed
by the Mayor and subject to his removal, id. §§ 29, 30, 43, 90.2 And the Health
Department was required to report directly to the Mayor, “furnish[ing] to him such
information as he may demand within such time as he may direct.” Id. § 31.
No amendments since 1870 have altered these fundamental characteristics of
the Board. Notably, the City did not alter the Board’s place within the separation
of powers when it gained the authority to structure its own affairs after the State’s
adoption of home rule in 1923. See N.Y. CONST. art. XII, §§ 2-3 (amended 1923)
(allowing for increased local governance). Instead, the City maintained the
Board’s identity as an executive-branch agency. See e.g., PRELIMINARY REPORT
AND DRAFT OF PROPOSED CHARTER FOR THE CITY OF NEW YORK, §§ 551, 553
(1936) (hereinafter 1936 REPORT) (maintaining Board as administrative agency
within Department of Health, with commissioner and members appointed by the
2 The 1870 Charter also repealed the Governor’s authority to remove such officers. See
id. § 29 (“Any provision of law giving to the Governor power to remove any officer of the city
government referenced to in this act is hereby repealed.” (emphasis added)).
20
Mayor). And to this day, the foundational provisions relating to the Board’s
authority as an executive-branch agency remain unchanged.
Like any other administrative agency, the Board is subject to the
requirements of CAPA. The Board undeniably fits CAPA’s definition of an
“agency,” as its members are mayoral appointees. N.Y.C. CHARTER § 553.
Accordingly, the Board must comply with CAPA’s “defined and standardized”
procedures for the adoption of new regulations. SUMMARY OF FINAL PROPOSALS
OF THE N.Y.C. CHARTER REVISION COMM’N, at 9 (1988) (explaining that city
agencies “must notify the public, conduct public hearings, and publish the rule
before it becomes effective”). The Board has never disputed this—to the contrary,
it has always recognized that it is bound by CAPA’s notice-and-comment
procedures in promulgating additions or amendments to the Health Code. In 2013,
for instance, the Board promulgated 13 rules, adhering to CAPA every time. See
N.Y.C. Dep’t of Health & Mental Hygiene, 2013 Notices of Adoption, available at
http://goo.gl/20VV99. By contrast, amicus is not aware of a single instance in
which the Board has disregarded CAPA’s requirements in enacting a regulation.
Moreover, in compliance with CAPA, the Board of Health’s amendments to the
Health Code—like any other agency rules—are published within the Rules of the
City of New York. See R.C.N.Y., tit. 24. These rules include the soda ban
presently at issue. R.C.N.Y. tit. 24, § 81.53.
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In short, the Board of Health is an administrative agency that is situated
within the City’s executive branch, answers to the Mayor, and complies with
CAPA in promulgating its regulations. The Board’s identity as an executive-
branch administrative agency is undeniable.
B. The Board Can Only Exercise Delegated Rule-Making Authority,
Not Legislative Authority.
As an administrative agency, the Board “is clothed with those powers
expressly conferred by its authorizing statute”—here, the Charter itself.
Campagna, 73 N.Y.2d at 242. The Charter authorizes the Board to “add to and
alter, amend or repeal any part of the health code,” “embrac[ing] ... all matters and
subjects to which the power and authority of the department extends.” N.Y.C.
CHARTER § 558(b), (c).3 And the Department’s authority extends to “all matters
affecting health” in the City of New York, including a long list of enumerated
considerations. Id. § 556. These provisions set the outer bounds of the Board’s
authority. See supra at I.B. And the fact that the Charter “vested … the legislative
3 The Board is also authorized to “confer additional powers on the [D]epartment [of
Health and Mental Hygiene] not inconsistent with the constitution, laws of this state or this
charter.” N.Y.C. CHARTER § 558(b). As this Court has recognized, the “not inconsistent with”
language applies only to the Board’s authority to increase the Department’s power; it does not
modify the Board’s authority to amend the Health Code. In re Bakers Mut. Ins. Co. of N.Y., 301
N.Y. 21, 26 (1950). Amici Wilfredo Lopez and Andrew Goldberg thus err in suggesting that the
Board’s amendments to the Health Code must only be consistent with state law but “not
necessarily” with Local Laws enacted by the City Council. Lopez Amicus Br. at 12. Indeed,
any attempt by the Board at enacting regulations inconsistent with Local Laws would infringe
upon the legislative power that the Charter vests exclusively in the City Council. N.Y.C.
CHARTER § 21.
22
power of the city” in the City Council, N.Y.C. CHARTER § 21 (emphasis added),
eliminates the possibility that the Charter delegated any such power to the Board.
Defendants nevertheless contend that because the Board’s delegated
authority is crafted in broad terms, its authority to enact the soda ban cannot be
questioned. See Defs. Reply Br. at 26-28. But this turns the idea of delegated
authority on its head: the fact that the Board has been granted power to regulate in
the area of public health means that it must adhere to the terms of that delegation,
and cannot exercise unlimited power. “Even under the broadest and most open-
ended of statutory mandates, an administrative agency may not use its authority as
a license to correct whatever societal evils it perceives.” Boreali, 71 N.Y.2d at 9.
This Court has confronted many agencies with purportedly “broad” delegations of
authority, but has always assessed the specific enactment at issue to determine
whether the agency had nonetheless exceeded that authority.4 And as Boreali itself
shows, even agencies acting under “broad grant[s] of authority” can exceed that
authority, thereby violating the separation of powers. Id.
Even more to the point, this Court has never held that an administrative
agency acting pursuant to a delegation of authority—broad or not—could simply
4 See, e.g., Serio, 100 N.Y.2d at 864 (noting the Superintendent of Insurance’s “broad
grant of regulatory power,” and applying Boreali); Rent Stabilization Ass’n, 83 N.Y.2d at 168
(noting the Division of Housing and Community Renewal’s “broad mandate to promulgate
regulations in furtherance of the rent control and rent stabilization laws,” and applying Boreali);
N.Y. State Health Facilities Ass’n, Inc. v. Axelrod, 77 N.Y.2d 340, 347 (1991) (noting the Public
Health Council’s “broad” authority to enact regulations, and applying Boreali).
23
act in whatever manner it saw fit. And for good reason: such a holding would be
irreconcilable with the separation-of-powers doctrine. Where an agency is
specifically delegated authority, any action it takes beyond that delegation
unlawfully usurps legislative power that the Charter vests solely in the City
Council. See, e.g., Med. Soc’y of State v. Serio, 100 N.Y.2d 854, 864 (2003)
(“[T]he legislative branch may not constitutionally cede its fundamental
policymaking responsibility to a regulatory agency.”); Boreali, 71 N.Y.2d at 10
(“Because of the constitutional provision that [t]he legislative power of this State
shall be vested in the Senate and the Assembly, the Legislature cannot pass on its
law-making functions to other bodies ….”).
Defendants’ boundless interpretation of the Charter’s delegation of authority
to the Board upends this foundational separation-of-powers principle by essentially
creating two legislatures in the realm of public health—the City Council and the
Board of Health. Defendants acknowledge this by alluding to the possibility that
the Board and the City Council could issue conflicting enactments on a matter of
public health. See Defs. Reply Br. at 23. But Defendants offer not the slightest
suggestion for how the courts should go about resolving this conflict.
There is no basis—and no need—for the Court to accept an interpretation of
the Charter that inevitably leads to an irreconcilable conflict between the City
Council and the Board. Instead, this Court need only adhere to normal separation-
24
of-powers principles in determining whether the Board’s adoption of the soda ban
is within the scope of its delegated authority.5 The purported breadth of the
Board’s authority “does not mean … that the regulations at issue here should be
deemed valid without further analysis.” Boreali, 71 N.Y.2d at 11.
C. Defendants’ Position Is Contrary To The Structural Reforms
Adopted To Ensure That Only The City Council Wields
Legislative Authority.
As explained above, traditional separation-of-powers principles doom
Defendants’ claim that the Board exercises legislative authority. And this
conclusion is only bolstered by the Ravitch and Schwarz Commissions’ reforms of
the City Charter. Defendants have not even attempted to explain how their
position could possibly be reconciled with the overhaul effectuated by those
Commissions—nor could they. The Ravitch Commission’s adoption of CAPA
5 Defendants rely on a number of decades-old cases to support their claim that the Board
has “legislative” authority. However, those decisions merely describe the Board’s delegated
authority to promulgate regulations, which is, in a sense, akin to legislative activity. But none of
those authorities stand for the proposition that the Board wields authority to act as a legislature.
See, e.g., Grossman v. Baumgartner, 17 N.Y.2d 345, 349-50 (1966) (assessing a Board
regulation under the standard for reviewing agency action, asking whether “the Board of Health
acted arbitrarily or capriciously or” enacted an “unreasonable” regulation); Metropolitan Bd. of
Health v. Heister, 37 N.Y. 661, 672 (1868) (“The power to be exercised by this board upon the
subjects in question … falls more properly under the head of an administrative duty.”). Indeed,
in People v. Blanchard, the decision that Defendants principally emphasize, this Court
specifically relied on the distinction between delegated rule-making authority and the legislative
power in concluding that the Board of Health had no authority to define criminal offenses—a
paradigmatic “legislative” action: “It is true that the substantive law-making power of the People
is vested by the Constitution in the Legislature and cannot be delegated. It is also true that the
definition of criminal offenses and the prescription of punishment therefor is part of that
legislative power…. But there has been no infringement of these standards [by the Board] in this
instance.” 288 N.Y. 145, 147-48 (1942). This Court has never held that the Board possesses
legislative power unconstrained by any delegation.
25
established a set of rules for administrative agencies that is entirely distinct from
the rules the City Council adheres to in exercising its undeniably legislative
powers. And the Schwarz Commission’s subsequent efforts had as their
cornerstone the vesting of all legislative authority exclusively in the City Council,
precisely to avoid repeating a situation in which an organ of the City government
would exercise both legislative and executive authority (as the Board of Estimate
had done before it was eliminated).
These reforms leave no room for Defendants’ argument that the Board of
Health, alone among all entities within the City’s government, somehow exercises
legislative authority that is not subject to the normal rules for judicial review of
agency rule-making. The Commission never even considered making an exception
for the Board of Health, and such an exception would be flatly inconsistent with
the Commission’s unequivocal decision not to resurrect the one body that had
exercised both legislative and executive power (the Board of Estimate). Because
Defendants’ position would give the Board powers that no other agency
possesses—at the expense of the City Council—it is impossible to reconcile with
the Schwarz Commission’s structural reforms.
CONCLUSION
Defendants ask this Court to treat the Board differently from any other
administrative agency in the City government. That position is inconsistent with
the City Charter's separation of powers and with the structural reforms undertaken
to ensure that only the City Council wields legislative authority. Defendants thus
cannot shield the Board from the question that this Court always asks when
confronted with agency actions that are allegedly beyond the scope of their
delegated authority: can that delegation "be construed to encompass the policy-
making activity at issue here without running afoul of the constitutional separation
of powers doctrine"? Boreali, 71 N.Y.2d at 14. The Court should analyze the
Board's enactment of the soda ban under this well-established standard.
Dated: April25, 2014
New York, New York
Respectfully submitted,
Noel J. Francisco
Ryan D. Newman
William D. Coglianese
Sarah A. Hunger
Matthew R. McGuire
JONES DAY
51 Louisiana A venue NW
Washington, DC 20001
Tel.: (202) 879-3939
Fax: (202) 626-1700
ajdick@jonesday .com
Counsel for Amicus Curiae
Dean Eric Lane
26