Reproduced on Recycled Paper ♻

COURT OF APPEALS STATE OF NEW YORK

APL 2013-00291

Kim E. Richman REESE RICHMAN LLP 875 Avenue of the Americas 18th Floor New York, New York 10001 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 krichman@reeserichman.com Attorneys for Amici Curiae

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,

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, Respondents-Appellants.

BRIEF OF AMICI CURIAE

PAUL A. DILLER, CLAYTON GILLETTE, MICHAEL HERZ, RODERICK M. HILLS, JR., KATHLEEN MORRIS, AND RICK SU,

IN SUPPORT OF RESPONDENTS-APPELLANTS

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TABLE OF CONTENTS STATEMENT OF INTEREST OF THE AMICI CURIAE ...................................... 1

PRELIMINARY STATEMENT ............................................................................... 5

ARGUMENT ............................................................................................................. 7

I. THIS COURT SHOULD ABANDON OR RELAX THE STRICT NONDELEGATION CANON ROOTED IN BOREALI V. AXELROD .................................................................... 7

A. IT IS UNCLEAR WHETHER BOREALI INTENDED

TO ADOPT A STRICT NONDELEGATION DOCTRINE ................................................................................ 9

B. BORELAI HAS ERRONESOUSLY METAMORPHOSED INTO A STRINGENT NONDELEGATION DOCTRINE THAT MANDATES AGENCY TUNNEL VISION AND HINDERS SMART REGULATION ......................................................................... 13

C. A MORE RELAXED DELEGATION DOCTRINE

WOULD PRESERVE DEMOCRATIC ACCOUNTABILITY, WHICH WAS THE CORE CONCERN OF THE BOREALI COURT ............................... 20

II. THIS COURT SHOULD NOT APPLY BOREALI’S

NONDELEGATION CANON TO THE RULEMAKING POWERS OF LOCAL AGENCIES ................................................... 23

A. THE PLAIN TEXT OF ARTICLE III, §1 EXCLUDES

THE LAWMAKING POWERS OF LOCAL GOVERNMENTS FROM THE SCOPE OF THE NONDELEGATION DOCTRINE LIMITING AGENCIES’ POWERS ............................................................ 24

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B. BOREALI’S RIGID VERSION OF THE NONDELEGATION DOCTRINE UNDERMINES ARTICLE IX’S PROTECTION OF DIVERSITY AND EXPERIMENTATION IN LOCAL GOVERNMENTAL STRUCTURE ........................................................................... 27

C. THE BOARD OF HEALTH’S PORTION-CAP RULE

DOES NOT CONFLICT WITH PRINCIPLES OF LOCAL ADMINISTRATIVE LAW TO WHICH LOCAL AGENCIES ARE PROPERLY SUBJECT ................ 30

CONCLUSION ........................................................................................................ 35

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TABLE OF AUTHORITIES

CASES Ahmed v. City of New York, --- N.Y.S.2d ---- , 2014 N.Y. Slip Op. 24098 (Sup. Ct. N.Y. County Apr. 8, 2014) ............................................................ 34 American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981) ............................. 12 Bareham v. City of Rochester, 221 A.D. 36, 40 (4th Dep’t 1927) .......................... 28 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) ........................................................... passim Boreali v. Axelrod, 130 A.D.2d 107, 111 (3d Dep’t 1987), aff’d 71 N.Y.2d 1 ..................................................................................................................... 9 Bourquin v. Cuomo, 85 N.Y.2d 781 (1995) .............................................................. 6 Casado v. Markus, 16 N.Y.3d 329 (2011) ............................................................... 34 Citizens for an Orderly Energy Policy v. Cuomo, 78 N.Y.2d 398 (1991) ....................................................................................................................... 20 Durante v. Town of New Paltz Zoning Bd. of Appeals, 90 A.D.2d 866, 867 (3d Dep't 1982) ......................................................................................... 32 Dur-Bar Realty Co. v. City of Utica, 57 A.D.2d 51 (4th Dep't 1977), order aff'd, 44 N.Y.2d 1002 (1978) ......................................................................... 33 Greater N.Y. Taxi Assn. v. New York City Taxi & Limousine Comm’n, 42 Misc.3d 324, 972 N.Y.S.2d 513 ........................................................ 34 New York State Club Ass’n, Inc. v. City of New York, 69 N.Y.2d 211, 217 (1987) ........................................................................................................ 23 New York State Health Facilities Assn. v. Axelrod, 77 N.Y.2d 340 (1991) ....................................................................................................................... 14 Mooney v. Cohen, 272 N.Y. 33, 38-39 (1936) ............................................ 25, 26, 27

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Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) ........................................................ 7 Rent Stabilization Ass’n of N.Y. City v. Higgins, 83 N.Y.2d 156 (1993), cert. denied, 512 U.S. 1213 (1994) ............................................................. 20 Resnick v. Ulster County, 44 N.Y.2d 279, 286 (1978) .................................... 28, 29 Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) ......................... 7, 12 Under 21, Catholic Home Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344 (1985) ........................................................................ 24, 30, 31 Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457 (2001) ............................ 7, 14 OTHER AUTHORITIES Anemona Hartocollis, The Mayoral Candidates on Public Health, N.Y. Times, Sept. 2, 2013, at A12 ........................................................................... 22 Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000) ................................................................................................. 7 David A. Super, Against Flexibility, 96 Cornell L. Rev. 1375, 1387 & n.32 (2011) ........................................................................................................... 13 Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002) ................................................................. 8 Gary J. Greco, Survey, Standards or Safeguards: A Survey of the Delegation Doctrine Among the States, 8 Admin. L.J. Am. U. 567, 578, 581 (1994) ......................................................................................................................... 6 Hans A. Linde, The State and The Federal Courts in Governance: Vive La Différence!, 46 Wm. & Mary L. Rev. 1273 (2005) .................................. 10 Jamelle C. Sharpe, Judging Congressional Oversight, 65 Admin. L. Rev. 183, 203 (2013) ............................................................................................... 16 Jeff Shesol, Supreme Power 31-32 (2010) ................................................................ 8

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Jeffrey Schmalz, Curbs on Smoking Are Struck Down in New York State, N.Y. Times, Nov. 26, 1987, § 1, at 11 ............................................................. 9 Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81 (1985) ................................................... 8 Katrin Bennhold, The Ministry of Nudges, N.Y. Times, Dec. 8, 2013, at BU1 ................................................................................................ 16 Kara Marcello, Note, The New York City Sugar-Sweetened Beverage Portion Cap Rule: Lawfully Regulating Public Enemy Number One in the Obesity Epidemic, 46 Conn. L. Rev. 807, 831 (2013) .................................. 29 Laurence H. Tribe, American Constitutional Law (1978) ...................................... 11 Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1551 (1992) ...................................... 14 Michael Herz, The Rehnquist Court and Administrative Law, 99 Nw. U. L. Rev. 297, 306-07 (2004) ................................................................................ 12 Michael E. Libonati, “Neither Peace nor Uniformity”: Local Government in the Wisconsin Constitution, 90 Marq. L. Rev. 593, 598-99 (2007)........................................................................................................... 27 New York Constitution’s Article IX .............................................................. 7, 25, 27 New York City, N.Y., Charter § 22. ........................................................................ 22 New York City, N.Y., Charter § 29. ........................................................................ 23 New York City, N.Y., Charter § 556 ....................................................................... 31 New York City, N.Y., Charter § 558 ....................................................................... 26 New York City, N.Y., Charter § 1138 ..................................................................... 22 New York City, N.Y., Charter § 1043 ..................................................................... 19

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Patricia E. Salkin, 2 Am. Law. Zoning § 14:9 (5th ed.) ......................................... 32 Paul A. Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109, 1136 (2012) ........................................................................................... 28 Paul A. Diller, Local Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson, 40 Fordham Urb. L.J. 1859, 1899(2013) 15, 18, 19, 22 Public Health Law § 220 ........................................................................................... 9 William Funk, Rationality Review of State Administrative Rulemaking, 43 Admin. L. Rev. 147, 162 n. 97 (1991) .......................................... 13 Rebecca Caplan, Bill de Blasio Wins New York City Mayoral Race in Landslide, cbsnews.com, Nov. 6, 2013, http://www.cbsnews.com/news/bill-de-blasio-wins-new-york-city-mayoral-race-in-landslide/ ........................................ 6 Richard Briffault, Home Rule for the Twenty-First Century, 36 Urb. Law. 253, 266 (2004) ........................................................................................................ 30

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STATEMENT OF INTEREST OF THE AMICI CURIAE

Amici are six law professors who specialize in local government law and

administrative law. Four of the six teach at prominent law schools in New York

State. Each has followed the litigation in this case closely. They offer their views

as scholars and practitioners intensely interested in the issues of administrative,

local government, and state constitutional law raised by this appeal. Each

professor, in alphabetical order, is described in more detail below.

Paul A. Diller is an Associate Professor of Law at Willamette University

College of Law in Salem, Oregon, where he teaches classes in local government

law, state constitutional law, and public health law. Professor Diller is a prolific

scholar in the field of local government law. His academic writings have appeared

in, among other journals, The Stanford Law Review, The University of Chicago

Law Review, Georgetown Law Journal, and the Fordham Urban Law Journal. He

has written articles on state-local preemption, the structure of local government,

local administrative rulemaking, and local authority to regulate private law.

Professor Diller is a former Trial Attorney for the United States Department of

Justice, Civil Division, and is a member of the New York, New Jersey, and United

States Supreme Court bars. Upon graduating magna cum laude from the

University of Michigan Law School, he was a clerk for Chief Judge Edward R.

Becker of the United States Court of Appeals for the Third Circuit.

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Clayton Gillette is Max E. Greenberg Professor of Contract Law at New York

University School of Law. He is one of the nation’s foremost experts on municipal

finance, having co-authored the treatise Municipal Debt Finance Law (with Robert

S. Amdursky) and consulted in litigation concerning the default on municipal

bonds by Orange County, California, and the Washington Public Power Supply

System. Professor Gillette is also a leading expert in the structure of local

government, having co-authored the casebook Local Government Law (with Lynn

Baker) and written numerous articles on local plebiscites, relations between

localities and their neighbors, privatization of municipal services, and the scope of

home rule and preemption. Professor Gillette’s practical expertise in the structure

of local democracy is reflected by his service as the Reporter for the ABA

Intersectional Task Force on Initiatives and Referenda. Before joining the New

York University Law School’s faculty in 2000, Professor Gillette was the Perre

Bowen Professor of Law at the University of Virginia School of Law and the

Warren Scholar in Municipal Law and Associate Dean at Boston University Law

School.

Michael Herz is Arthur Kaplan Professor of Law, and Co-Director of the

Floersheimer Center for Constitutional Democracy at the Benjamin N. Cardozo

School of Law, Yeshiva University, where he teaches and writes primarily in the

areas of administrative, environmental, and constitutional law. A graduate of

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Swarthmore College and the University of Chicago Law School, Professor Herz

served as law clerk to Chief Judge Levin Campbell of the United States Court of

Appeals for the First Circuit and Justice Byron R. White of the United States

Supreme Court. He joined the Cardozo faculty in 1988 after three years as an

attorney with the Environmental Defense Fund. He was a visiting professor at

New York University School of Law from 2000 to 2001 and 2005 to 2006, has

taught at Columbia and Princeton, and spent a year as a Fellow in Princeton’s

Program in Law and Public Affairs. A former Chair of the ABA’s Section of

Administrative Law and Regulatory Practice, he currently serves as a public

member of the Administrative Conference of the United States.

Roderick M. Hills, Jr. is the William T. Comfort III Professor of Law at New

York University School of Law. Prior to joining the New York University faculty

in 2006, Professor Hills was a professor of law for twelve years at the University

of Michigan, specializing in state and federal constitutional law, local government

law, and land-use regulation. He has published articles and book chapters on the

topics of federalism, local governments’ powers, and land-use regulation in

(among other journals) the Harvard Law Review, The Stanford Law Review, the

University of Pennsylvania Law Review, The Annals of the American Academy of

Political and Social Science, The Supreme Court Review, Northwestern University

Law Review, and the Michigan Law Review. In addition to being a scholar and

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teacher, Professor Hills has been a cooperating council with the Michigan Civil

Liberties Union.

Kathleen Morris is an Associate Professor of Law at Golden Gate University

School of Law. She is a former deputy city attorney at the San Francisco City

Attorney’s Office, where she was the founding Executive Director of the

Affirmative Litigation Task Force. In that role, Professor Morris helped lead the

development of a public policy litigation docket for San Francisco. In 2006 she

and Professor Heather Gerken co-founded the San Francisco Affirmative Litigation

Project at Yale Law School, through which students develop and litigate impact

cases alongside deputy city attorneys. Professor Morris has been a Visiting

Lecturer at Yale Law School, a Lecturer at University of California-Berkeley Law

School, and a Visiting Assistant Professor at Rutgers-Camden Law School. She

has a J.D. from the U.C.-Berkeley, and was a law clerk for the Judge Sidney R.

Thomas of the United States Court of Appeals for the Ninth Circuit. Her

scholarship on local government law has appeared in the Fordham Urban Law

Journal, the Harvard Civil Rights-Civil Liberties Law Review, and Why The Local

Matters: Federalism, Localism, and Public Interest Advocacy (2010).

Rick Su is a Professor of Law at SUNY Buffalo Law School and teaches

courses in local government law, property, and land use. His scholarship focuses

on the legal relationship between states, localities, and the federal government in

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the context of immigration regulation and enforcement. His articles have

appeared in numerous law reviews, including the North Carolina Law Review, the

William and Mary Law Review, and the Houston Law Review. After graduating

from Harvard Law School in 2004, Professor Su clerked for Judge Stephen

Reinhardt of the United States Court of Appeals for the Ninth Circuit, served as the

Charles Hamilton Houston fellow at Harvard Law School, and worked for the

United States Department of Housing and Urban Development.

PRELIMINARY STATEMENT

The New York City Board of Health’s portion-cap rule is run-of-the-mill local

administrative rulemaking. As with any regulation that a private party dislikes, the

plaintiffs could have focused their energy on overturning the rule through

democratic means. Their numerous options in that regard included 1) lobbying the

New York City Council to override the rule; 2) seeking to elect a mayor who

opposed the rule and would refuse to defend it in court; 3) lobbying the New York

State Legislature to preempt the rule; and 4) seeking to amend the New York City

Charter to withdraw the power of the Board to enact such a rule.

Instead of seeking relief democratically, however, the plaintiffs ask this state’s

judiciary to rescue them by imposing a stringent nondelegation doctrine on the

Board of Health. To that end, plaintiffs rely on the curious precedent of Boreali v.

Axelrod, 71 N.Y.2d 1 (1987), in which this Court simultaneously embraced and

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disavowed the nondelegation doctrine. Largely accepting the plaintiffs’

arguments, the Appellate Divison applied Boreali to the portion-cap rule in a

manner that threatens the efficacy of agency rulemaking throughout the state.

Amici respectfully request this Court to reconsider Boreali, either overruling its

half-hearted revival of the nondelegation doctrine or limiting the opinion’s

reasoning to that case’s extreme facts. Boreali’s four factors unjustifiably require

agencies to adopt narrow tunnel vision when enacting rules, ignoring not only the

views of political leaders but also the social and economic ramifications of their

decisions. Boreali also hamstrings agencies by preventing them from using the

most effective regulatory tools to achieve their regulatory ends. Further, Boreali

encourages opponents of agencies’ rules to engage in legislative gamesmanship,

proposing bills that they know will be defeated in order to create the false

appearance that the state legislature’s failure to adopt such proposals somehow

indicates a legislative rejection of the agency’s rule. Nothing in the text or history

of the New York Constitution requires or even suggests such a dysfunctional

approach to administrative law.

Even assuming arguendo that Boreali remains good law at the state level, there

is no reason why Boreali ought to apply, ipso facto, to local agencies. Local

agencies are creatures of local charter and therefore should not be subject to the

same structural constitutional doctrines that constrain state agencies. Through

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Article IX’s home-rule provisions, the New York Constitution enthusiastically

embraces the value of local experimentation with respect to local decision-making

processes. The constitution envisions not only that different cities will embrace

different substantive policies but also that cities might—and should—govern

themselves through structures distinct from those that operate at the state level.

Just as New York City need not have a bicameral legislature, it also need not be

subject to the exact same separation-of-powers doctrine that the Boreali Court

articulated for the state legislature.

ARGUMENT

I. THIS COURT SHOULD ABANDON OR RELAX THE STRICT NONDELEGATION CANON ROOTED IN BOREALI V. AXELROD.

In Boreali v. Axelrod, 71 N.Y.2d 1 (1987), this Court invalidated the Public

Health Council’s (PHC’s) rule banning smoking in indoor buildings. Id. at 16.

Perhaps unintentionally, the decision in Boreali made New York one of the handful

of states that enforces, albeit inconsistently, a strict version of the nondelegation

doctrine. At the federal level, the nondelegation doctrine has effectively fallen into

desuetude since its “one good year” of 1935.1 See Whitman v. Am. Trucking

                                                            1 In that year the United States Supreme Court invalidated federal legislation on the basis of the nondelegation doctrine in two cases. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935). Those two cases amount to the only time the United States Supreme Court has ever relied on the nondelegation doctrine to strike down a federal law or regulation. See Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000) (noting that the nondelegation doctrine “has had one good year [1935], and

8 

Ass’ns, Inc., 531 U.S. 457, 474-75 (2001) (recounting the enormously broad

statutory delegations to agencies that the United States Supreme Court has upheld

against nondelegation challenges since 1935). The federal nondelegation doctrine

is also tainted by its association with the reactionary pre-1935 United States

Supreme Court that invalidated numerous New Deal programs. See Boreali, 71

N.Y.2d at 10 n.1; id. at 19-20 (Bellacosa, J., dissenting). Moreover, legal scholars

have criticized the nondelegation doctrine as neither consistent with constitutional

text nor compatible with the modern administrative state. See, e.g., Eric A. Posner

& Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev.

1721 (2002) (criticizing the textual basis for the nondelegation doctrine); Jerry L.

Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1

J.L. Econ. & Org. 81 (1985) (arguing that a ban on broad delegations and a well-

functioning administrative state are incompatible). Because of Boreali, however,

New York courts—such as the trial and appellate courts in this case—sometimes

apply a version of the nondelegation doctrine that would make the “Four

Horsemen” proud.2 Amici law professors respectfully urge this Court to reconsider

Boreali and either overrule it or limit its applicability to that case’s extreme facts.

                                                            

211 bad ones (and counting)”). 2 The “Four Horsemen”—Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter—were United States Supreme Court justices in the 1920s and early 1930s who consistently voted to strike down New Deal legislation for various constitutional reasons, including the nondelegation doctrine. See Jeff Shesol, Supreme Power 31-32 (2010).

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A. IT IS UNCLEAR WHETHER BOREALI INTENDED TO ADOPT A STRICT NONDELEGATION DOCTRINE.

Plaintiffs rely heavily on Boreali to invalidate the New York City Board of

Health’s sugar-sweetened-beverage portion-cap rule. (Resp. Br., pp. 35-50.) A

fresh reading of Boreali, however, reveals two crucial points suggesting that the

precedent should be read much more narrowly than plaintiffs suggest. First, the

primary concern of this Court in invalidating the PHC’s rule was preserving

democratic accountability. The PHC’s antismoking rule was an end-run around

numerous prior failed attempts to achieve the same substantive result through the

legislative process. See Boreali, 71 N.Y.2d at 7 (noting that “some 40 bills on the

subject” had been introduced “in the Legislature since 1975,” but that “none have

passed both houses”). The Boreali Court was disturbed that the PHC, composed of

appointees of Governor Mario Cuomo, attempted to accomplish through regulatory

means that which Governor Cuomo and other advocates of clean indoor air had

been unable to achieve through the legislative process. See Boreali v. Axelrod,

130 A.D.2d 107, 111 (3d Dep’t 1987), aff’d, 71 N.Y.2d 1 (“The PHC . . . consists

of the Commissioner and 14 members appointed by the Governor”) (citing Public

Health Law § 220); see also Jeffrey Schmalz, Curbs on Smoking Are Struck Down

in New York State, N.Y. Times, Nov. 26, 1987, § 1, at 11 (“Forty times in the last

12 years, the Legislature has chosen not to pass tougher limits on smoking, and

prospects were uncertain for the next session . . . .”).

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The Boreali Court likely feared that upholding the PHC’s antismoking rule

would embolden governors to circumvent the legislative process—with its burdens

of compromises, concessions, and deal-making—to achieve their policy goals.

Given the background of numerous failed legislative attempts to accomplish the

same ends as the PHC’s rule, the Court grudgingly held that the PHC’s rule

“transgressed” the “difficult-to-define line between administrative rule-making and

legislative policy-making.” 71 N.Y.2d at 11. Without such a clear record of the

legislature having rebuffed on numerous occasions the specific regulation

challenged, the Court may well have reached a different conclusion. Id. (noting

the presence of “all of” . . . “[a] number of coalescing circumstances”) (emphasis

added). After all, when a legislature has not expressly and repeatedly rejected a

specific regulatory proposal, an agency’s promulgation of a similar rule does not

fly in the face of the expressed preferences of the legislature.

The second insight from a fresh reading of Boreali is that it is far from clear that

this Court intended to recognize, create, or resurrect a state constitutional

nondelegation doctrine stricter than its federal analogue. The Court acknowledged

that the nondelegation doctrine of the 1930’s had, “quite rightfully, fallen into

disrepute.” Id. at 10 n.1. Although the Boreali Court was, of course, free to

interpret the New York Constitution’s separation-of-powers doctrine differently

from the federal version, see generally Hans A. Linde, The State and The Federal

11 

Courts in Governance: Vive La Différence!, 46 Wm. & Mary L. Rev. 1273 (2005),

nowhere in its opinion did the Court stake out independent interpretive turf. The

Court never discussed any textual or historical differences between the state

Constitution’s separation-of-powers provision and the federal Constitution’s. Nor

did the Court cite any secondary sources interpreting the state Constitution.

Rather, the Court consistently looked to federal constitutional sources to interpret

the state Constitution, citing Professor Laurence H. Tribe’s treatise on federal

constitutional law three times. Boreali, 71 N.Y.2d at 9, 11, 13 (citing Tribe,

American Constitutional Law (1978), at 285, 288-89).3

Ironically, while the Boreali Court expressly disclaimed any ambition to revive

a special state nondelegation canon and instead relied on federal authority to

interpret the state Constitution, its reasoning at times departed sharply from

contemporaneous—and contemporary—federal delegation doctrine. Notably, the

Court viewed unfavorably the agency’s balancing of health concerns with other

interests, like the potential economic costs of a rule. Boreali, 71 N.Y.2d at 12.

Citing to a dissenting opinion of then-Justice William Rehnquist, the Boreali Court

                                                            3 In the pages of the treatise cited by the Boreali Court, Professor Tribe expressly noted that the United States Supreme Court had been “particularly likely to reject broad delegations of congressional power . . . when the action of the government agency claiming delegated power touches constitutionally sensitive areas of substantive liberty.” Tribe, supra, at 288. Such is decidedly not the case here, as there is no constitutionally protected right to drink soda or other sweetened beverages in unlimited (or in any) quantities. See Samuel R. Wiseman, Liberty of Palate, 65 Me. L. Rev. 737, 746 (2013) (“[T]here is no general, fundamental right to food liberty . . . .”).

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observed that the legislature had not specifically authorized the PHC to engage in

“cost-benefit” analysis. Id. (citing American Textile Mfrs. Inst. v. Donovan, 452

U.S. 490, 543-48 (1981) (Rehnquist, J., dissenting)). In his American Textile

dissent, Justice Rehnquist noted that he would have struck down the statute in

question—the Occupational Safety and Health Act of 1970—as an unconstitutional

delegation in a prior decision. Id. at 543-44 (citing Industrial Union Dept. v.

American Petroleum Institute, 448 U.S, 607, 671 (1980) (Rehnquist, J.,

concurring)). Justice Rehnquist’s view in American Textile was rooted in his hope

to revive the nondelegation doctrine, an ill-fated effort that he later abandoned as

Chief Justice. See Michael Herz, The Rehnquist Court and Administrative Law,

99 Nw. U. L. Rev. 297, 306-07 (2004) (“Obviously, the Rehnquist nondelegation

position [as expressed in Industrial Union Dept. and other cases] has not prevailed .

. . .”); id. at 307 (observing that Rehnquist, later as Chief Justice, was

“emphatically uninterested in putting teeth into the nondelegation doctrine,” and

noting the United States Supreme Court’s “abandonment” of the doctrine under his

helm).

The Boreali Court cited Justice Rehnquist’s American Textile dissent without

recognizing the tension between Justice Rehnquist’s views and the Court’s

criticism of the nondelegation doctrine. Only Justice Bellacosa, in dissent,

recognized the “discordant note” sounded by the Court’s opinion. Boreali, 71

13 

N.Y.2d at 19 (criticizing the Court’s “reliance on the anachronistic nondelegation

theory embodied in” Justice Rehnquist’s Industrial Union concurrence); id. at 19-

20 (noting that the nondelegation doctrine was “last used to invalidate an act of

Congress in . . . the infamous Schechter Corp. case, and arises from a line of

Supreme Court decisions responsible for a historic upheaval in the Supreme Court

and in the main subsequently overruled anyway”) (citations omitted).

B. BOREALI HAS ERRONEOUSLY METAMORPHOSED INTO A STRINGENT NONDELEGATION DOCTRINE THAT MANDATES AGENCY TUNNEL VISION AND HINDERS SMART REGULATION.

Despite the Boreali Court’s condemnation of the 1930’s nondelegation doctrine,

71 N.Y.2d at 10 n.1, scholarly commentators classify the case as establishing a

nondelegation doctrine far stricter than the modern federal approach. See David A.

Super, Against Flexibility, 96 Cornell L. Rev. 1375, 1387 & n.32 (2011)

(contrasting Boreali to the federal “intelligible principle” standard); William Funk,

Rationality Review of State Administrative Rulemaking, 43 Admin. L. Rev. 147,

162 n. 97 (1991) (citing Boreali as an example of a state case in which, “[u]nlike

the federal system . . . the antidelegation doctrine stands as a significant

limitation”); see also Gary J. Greco, Survey, Standards or Safeguards: A Survey of

the Delegation Doctrine Among the States, 8 Admin. L.J. Am. U. 567, 578, 581

(1994) (including New York among a “minority of states [that] still adhere to a

strict non-delegation policy”) (citing Boreali). Further, subsequent decisions have

14 

solidified Boreali’s sui generis “coalescing circumstances” into four “factors” that,

when applied as they were by the Appellate Division below, subject agency action

to a nondelegation analysis much stricter than its federal counterpart. E.g., New

York State Health Facilities Assn. v. Axelrod, 77 N.Y.2d 340, 348 n.2 (1991)

(referring to the four “Boreali factors”).

Each of the four “factors” attributed to Boreali bodes ill for a well-functioning

administrative system. The first “factor” asks whether the agency balanced

concerns in its area of expertise (say, public health) with other concerns, like

politics and economics. See Appellate Division opinion, at 4. The plaintiffs here

object that the Board of Health had the temerity to consider economic, social, and

even jurisdictional concerns in promulgating its rule. (Resp. Br. pp. 56-62.) As

Judge Bellacosa aptly noted in his Boreali dissent, it is completely unrealistic to

expect an agency to consider a rule based solely on the area of expertise within

which it operates, as “[l]ife and government are not so neatly categorized.” 71

N.Y.2d at 19. Agencies do not operate in a vacuum; they are, and should be, aware

of the political and economic environment in which they make rules. See Mark

Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv.

L. Rev. 1511, 1551 (1992) (noting that review of agency action, at the federal

level, by Congress and the President, “cabins agency decisionmaking so that it

cannot stray too far from [popular] consensus”). Such awareness helps ensure that

15 

agency rules are effective while also palatable to the public. Id. In light of the first

Boreali “factor,” however, New York agencies must sequester themselves and

willfully ignore any political, social, economic, or even jurisdictional

consequences of the rules they make. See Boreali 71 N.Y.2d at 19 (Bellacosa, J.,

dissenting) (“The majority . . . seems to assert that the PHC was too reasonable and

. . . should have . . . create[d] an absolute ban on indoor smoking expressly and

pristinely premised on public health concerns.”); see also Paul A. Diller, Local

Health Agencies, the Bloomberg Soda Rule, and the Ghost of Woodrow Wilson,

40 Fordham Urb. L.J. 1859, 1899 (2013) (criticizing this Boreali factor for forcing

agencies to “willfully ignore real-world concerns like a rule’s public acceptance or

practical enforceability”).

Application of the first Boreali “factor” can also hamstring an agency by

prohibiting that agency from using a regulatory tool to accomplish an authorized

regulatory goal in the absence of legislation specifically delegating power to use

the tool in question. Presumably, even if the Appellate Division had been satisfied

that the Board of Health possessed the power to combat obesity and dental decay,

it would have struck down the portion-cap rule because the Board was not also

delegated the specific power to use “behavioral economics” to achieve this end;

the choice of which tool to use, the Appellate Division said, is a “policy

decision[]” for the legislature only. Appellate Division opinion, at 5. Such an

16 

approach to administrative law is completely at odds with the federal model

Boreali purported to emulate. At the federal level, Congress routinely delegates all

sorts of policy decisions to administrative agencies, including the discretion to

choose the means to implement substantive policy goals. See Jamelle C. Sharpe,

Judging Congressional Oversight, 65 Admin. L. Rev. 183, 203 (2013) (noting the

routine “broad delegations of economic and social policymaking to agencies” in

the modern “era”). Surely, the New York Constitution does not require that the

state legislature or city council separately delegate to an agency the power to use

each and every analytical tool it may find helpful in designing regulations to

pursue substantive goals. If that is the case, agencies must return to the legislature

to request additional authority each and every time there is new social science

research upon which the agency might draw in crafting a regulatory scheme. Such

an approach hamstrings agencies and hinders smart and effective regulation. Cf.

Katrin Bennhold, The Ministry of Nudges, N.Y. Times, Dec. 8, 2013, at BU1

(discussing the United Kingdom’s Behavioral Insights Team, which uses

behavioral science research to develop more effective government regulations).

The second Boreali “factor” asks whether an agency operated on a “clean

slate”—i.e., without sufficient legislative guidance—in promulgating its rule. See

Appellate Division opinion, at 6. On its face, this “factor” may not seem terribly

problematic: Federal nondelegation doctrine, after all, requires that Congress give

17 

agencies an “intelligible principle” to guide their legislation. See Am. Trucking,

531 U.S. at 474. Application of this Boreali “factor,” however, as demonstrated by

the Appellate Division opinion below, can neuter any broad delegation that a

legislature might willingly grant an agency. Legislatures may well prefer to grant

broad authority to agencies, understanding the distinct advantages of

administrative rulemaking, such as agencies’ nimbleness and substantive expertise.

In doing so, the legislature is surely cognizant that it retains the ultimate authority

to override any rule that an agency might promulgate thereunder. Boreali,

therefore, can deprive the legislature of significant discretion in deciding how to go

about regulating a particular subject.

The third Boreali “factor,” which asks whether the legislature has repeatedly

tried and failed to pass legislation on the matter addressed by the administrative

agency, Appellate Division opinion, at 8, invites legislative gamesmanship

pernicious to a well-functioning democracy. The Appellate Division’s application

of this “factor” illustrates how even failed legislative proposals remote from an

agency’s rule could be used to stymie an agency’s policy initiative. Although

neither the New York City Council nor the New York State Legislature ever

considered, let alone defeated, any policy involving caps on portion size, the

Appellate Division held that these bodies’ failure to enact entirely different laws

pertaining to soda constituted some sort of implied preemption of the Department

18 

of Health’s portion cap rule. Id. Such expansive use of the third Boreali “factor”

fulfills the dire prediction of Justice Bellacosa’s dissent, which noted that the

majority’s reliance on failed legislative efforts “will be welcomed by opponents of

all kinds of existing laws . . . .” 71 N.Y.2d at 19. This “factor” provides a perverse

incentive for potential opponents of agency regulation to introduce bills that they

know will fail, since such failure may later be the basis for a judicial inference that

the legislature thereby denied to the agency the power to promulgate the rule.

Applying this “factor” to local agencies invites even more mischief, for failed

legislation at either the state or local level may count against the validity of a local

rule. See Diller, Local Health Agencies, supra, at 1876 (noting the “graver

disadvantage” of local, as opposed to state, agencies when the third Boreali

“factor” is applied to their rules).

Finally, the fourth Boreali “factor” is largely duplicative of the first, asking

whether any “special expertise or technical competence” in the subject field “was

involved in the development” of the regulation in question. Appellate Division

opinion, at 9. Whereas the first “factor” looks at whether the agency relied

“solely” on its expertise, this “factor” supposedly asks whether the agency relied at

all on its expertise. However, once a court concludes that the agency acted outside

its area of expertise, per “factor one,” the court is likely to conclude that the

agency’s expertise was not required to promulgate the rule in question. See, e.g.,

19 

id.

The New York courts have never developed a workable test for the fourth

Boreali “factor.” It is unclear whether this “factor” merely ensures that the agency

actually engaged in substantive review of the rule it promulgated. If so, such an

inquiry is duplicative of, and is better handled by, judicial review of agency

compliance with the procedures for rulemaking. See, e.g., New York City, N.Y.,

Charter § 1043 (City Administrative Procedure Act’s section on “Rulemaking”).

If, however, the point of this “factor,” as plaintiffs seem to urge, is to bar agencies

from relying on input from any elected official (Resp. Br. pp. 62-63), then this

“factor” unjustifiably forces an agency to turn a blind eye to the ideas of mayors,

city councils, or county commissions, despite these bodies’ being democratically

accountable sources of potentially valuable policy proposals. Diller, Local Health

Agencies, supra, at 1897 (“The mere fact that an agency board collaborates with an

elected official, even one who appoints its members, should not ipso facto nullify

the legitimacy of the resultant rule.”). No agency—and particularly no local

agency, which often have smaller staffs and budgets—should be required to re-

invent the wheel every time it adopts a regulation, putting on blinders to ignore the

informed sources of the most relevant policy proposals.

Indeed, because the consistent and unforgiving application of the Boreali

“factors” would lead to a dysfunctional administrative system, this Court has at

20 

times balked at using them. See, e.g., Rent Stabilization Ass’n of N.Y. City v.

Higgins, 83 N.Y.2d 156, 170 (1993), cert. denied, 512 U.S. 1213 (1994)

(upholding regulation despite the failure of 27 bills in the same substantive area,

which implicates the third Boreali “factor”). This Court has also at times

recharacterized its separation-of-powers doctrine as merely prohibiting executive

action that is “inconsistent with or arrogative of the Legislature’s prerogatives.”

Citizens for an Orderly Energy Policy v. Cuomo, 78 N.Y.2d 398, 410 (1991); see

also Bourquin v. Cuomo, 85 N.Y.2d 781, 784 (1995) (“[T]his Court has always

understood that the duties and powers of the legislative and executive branches

cannot be neatly divided into isolated pockets.”) (citations omitted).4 Nonetheless,

the lower court opinions in this case demonstrate that in the absence of a clear

statement from this Court disavowing a strict nondelegation doctrine, Boreali

remains a perpetual threat to agency action.

C. A MORE RELAXED DELEGATION DOCTRINE WOULD PRESERVE DEMOCRATIC ACCOUNTABILITY, WHICH WAS THE CORE CONCERN OF THE BOREALI COURT.

Were the Court to uphold the Board’s portion-cap rule, the democratic

accountability concerns at the heart of Boreali would be protected more than

                                                            4 In Bouquin, as in Boreali, the Court cited federal case law on separation of powers in construing the New York Constitution. See 85 N.Y.2d at 784-85 (citing Plaut v. Spendthrift Farm, 514 U.S. 211, 245 (1995) (Breyer, J., concurring) (“(The separation of powers) doctrine does not 'divide the branches into watertight compartments,' nor 'establish and divide fields of black and white.' ... (I)mportant separation of powers decisions ... sometimes turn(), not upon absolute distinctions, but upon degree.”) (citations omitted)).

21 

adequately. Under the looser, “intelligible principle” standard by which the federal

and many other state courts police delegations, the elected branches retain

considerable—and, indeed, ultimate—control over agency action. First, most

agencies are controlled by officials appointed by an elected executive. Agency

action, therefore, is responsive to public concerns insofar as it is ultimately

attributed to an elected executive. See Seidenfeld, supra, at 1551. Second,

legislatures retain the ultimate authority to override agency action with which they

disagree; legislatures routinely use or threaten to use this authority in order to

control the scope of agency action. See Sharpe, supra, at 203. Finally, even short

of legislatively overriding a regulation they dislike, legislators exercise “softer”

control over agencies by holding hearings, contacting agency officials, and

controlling an agency’s budget. Cf. id. at 233 (“Hearings, investigations, and

control over the budgetary process already provide Congress with substantial

influence (some would say de facto control) over administrative decisionmaking . .

. .”). All of these legislative tools ensure that the elected branches retain control

over the administrative process, and that agency-promulgated rules do not stray too

far from elected officials’ preferences. Id.

The circumstances of this case illustrate clearly how democratic accountability

would be preserved by upholding the portion-cap rule. Although the Board of

Health promulgated the rule, city residents clearly attributed the rule to Mayor

22 

Michael Bloomberg, who appointed the Board’s members and defended the rule

forcefully in the public sphere. See Diller, Local Health Agencies, supra, at 1861.

While Mayor Bloomberg was prohibited from running for re-election by term

limits, see Charter § 1138, he was still forced to defend the rule to the media and

the public. In the campaign to succeed Mayor Bloomberg, the portion-cap rule

was, appropriately, a subject of media inquiry and candidate debate. Several

candidates staked out positions in opposition to the rule; only one candidate,

William de Blasio, publicly supported the rule. See Anemona Hartocollis, The

Mayoral Candidates on Public Health, N.Y. Times, Sept. 2, 2013, at A12. The

voters of New York City, therefore, had a chance to act upon their views on the

portion-cap rule when they voted for mayor in November 2013; they elected de

Blasio in a landslide. See Rebecca Caplan, Bill de Blasio Wins New York City

Mayoral Race in Landslide, cbsnews.com, Nov. 6, 2013,

http://www.cbsnews.com/news/bill-de-blasio-wins-new-york-city-mayoral-race-in-

landslide/ (noting that with 99 percent of precincts reporting, de Blasio defeated his

closest challenger by 73 to 24 percent).

Outside the executive realm, the city council has been free to attempt to

override the portion-cap rule since its inception. While plaintiffs cite the

opposition of 14 (of 525) city councilors to the rule (Resp. Br. p. 10), these

                                                            5 See Charter § 22 (“The council shall consist of the public advocate and of fifty-one other

23 

councilors could have acted on their opposition by introducing legislation to

override or scale back the rule. Moreover, these councilors could have attempted

to use the council’s well-established investigative and budgetary powers to block

or water down the rule. See Charter § 29 (“The council . . . shall review on a

regular and continuous basis the activities of the agencies of the city . . . .”); id. §

227 (prohibiting the spending of city money without appropriation by the council,

and requiring agencies to submit spending and revenue reports to the council (and

mayor) annually). Instead, 14 councilors wrote a letter to Mayor Bloomberg

expressing opposition. (Resp. Br. p. 10.) Similarly, the state legislature has the

power to enact legislation preempting the rule. See New York State Club Ass’n,

Inc. v. City of New York, 69 N.Y.2d 211, 217 (1987) (recognizing the state

legislature’s power to preempt local police power regulations). Unlike state

agency action, this rule is subject to not just one, but two legislative checks.

Should the Court uphold the rule in this case, the question of whether the portion-

cap rule should stand would return squarely to the political realm, where it

rightfully belongs.

II. THIS COURT SHOULD NOT APPLY BOREALI’S NONDELEGATION CANON TO THE RULEMAKING POWERS OF LOCAL AGENCIES.

Even if this Court assumes arguendo that Boreali’s version of the nondelegation

                                                            

members . . . .”).

24 

doctrine ought to limit the power of state agencies, Boreali does not apply to the

rulemaking power of a municipal agency created by a city charter. Extending

Boreali to local agencies’ rulemaking defies not only plain constitutional text but

also undermines the spirit of constitutional home rule by imposing a strait jacket on

local governments’ power to experiment with structures for decisionmaking

different from the procedures used by the state.

A. THE PLAIN TEXT OF ARTICLE III, §1 EXCLUDES THE LAWMAKING POWERS OF LOCAL GOVERNMENTS FROM THE SCOPE OF THE NONDELEGATION DOCTRINE LIMITING STATE AGENCIES’ POWERS.

It is well-established that the constitutional basis for the separation-of-powers

approach enunciated in Boreali is Article III, section 1 of the New York

Constitution, specifying that “the legislative power of this state shall be vested in

the senate and the assembly.” See Boreali, 71 N.Y.2d at 9. This constitutional

provision applies by its terms to the state legislature, not to local governments. To

insist that agencies created either by municipal charters or local legislative bodies

comply with Boreali’s nondelegation doctrine arising out of Article III, §1 makes

no more sense than to insist that local legislatures be organized bicamerally with a

senate and an assembly: Both bicameralism and Boreali are equally the product of

a constitutional provision that, by its express terms, applies only to “the legislative

power of this state.” Local legislatures and agencies are governed by different

structural rules than those governing state institutions. Under 21, Catholic Home

25 

Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 356 (1985)

(“Of course, the pattern of government established for New York City by the City

Charter is not identical to that of … the State of New York”).

Local agencies are not subject to the same constraints as state agencies because

the power of the latter have a different source than the power of the former. Unlike

state agencies, local governments derive their authority not from Article III but

rather from the “home rule” powers guaranteed by the New York Constitution’s

Article IX, §2. In particular, Article IX, §2(b)(1) authorizes the state legislature to

“enact … a statute of local governments granting to local governments powers

including but not limited to those of local legislation and administration,” while

Article IX, §2(c)(i) authorizes local governments “to adopt and amend local laws

not inconsistent with the provisions of this constitution or any general law relating

to its property, affairs or government” even in the absence of such a state statute.

This Court has long held that the state legislature’s grants of power to local

governments pursuant to these “home rule” provisions are not subject to the limits

imposed on legislative delegations to state agencies. For instance, in Mooney v.

Cohen, 272 N.Y. 33, 38-39 (1936), this Court held that the state legislature could

delegate power to the mayor of New York City to appoint a charter revision

commission, even though that commission exercised broad legislative power that

could not be delegated to a state agency. The Mooney Court observed that the

26 

constitutional grant of home rule power authorizing the state legislature to confer

legislative powers on local governments lacked any requirement that such powers

be exercised by a particular type of local institution such as a city council. “The

Constitution of the state provides that the legislative power of the state shall rest in

the Senate and Assembly,” the Mooney Court noted, but “[t]here is no

constitutional provision that the legislative body for passing ordinances or laws of

a city shall rest in an assembly or a board of aldermen or any other body, and we

find no such provision in the Home Rule Amendment.” Mooney, 272 N.Y. at 39.

In rejecting the idea that New York City’s Municipal Assembly (the predecessor to

the City Council) had the exclusive right to enact all local legislation, Mooney

relied on the generality of the grant of home rule power contained in the state

constitution: “No limitation is here found upon the method by which these local

laws shall be adopted, and no replica of the State Senate and Assembly is

necessary. The city, therefore, having the power—and it is conceded—to amend

the charter, the Legislature of the state could designate the agency to exercise the

power.” Id.

Like the New York City charter revision commission of 1936, the Board of

Health is a local agency with a broad grant of power. See Charter §558 (conferring

power on the Board to promulgate provisions of the health code “for security of

life and health in the city”). Unlike delegations of power to state agencies, the

27 

charter’s grant of broad powers to the Board of Health is not limited by Article III,

§1 but instead is authorized by Article IX, §2(b), an entirely different provision of

the state constitution. As Mooney notes, an important purpose of “home rule”

provisions in the New York Constitution is to eliminate restrictions on the

delegation of law-making powers that would otherwise bar the state legislature

from conferring broad lawmaking powers on an agency. In this respect, New

York’s system of constitutional home rule serves a purpose parallel to that of other

states’ home-rule provisions. See, e.g., Michael E. Libonati, “Neither Peace nor

Uniformity”: Local Government in the Wisconsin Constitution, 90 Marq. L. Rev.

593, 598-99 (2007) (noting that Wisconsin’s Home Rule Amendment was adopted

in response to a state court decision striking down a state statute granting broad

powers of local self-government to the City of Milwaukee as violation of

nondelegation doctrine). It is simply a basic category mistake to limit the powers

of a local agency like the Board of Health by invoking the nondelegation doctrine

applicable to state agencies such as the PHC at issue in Boreali.

B. BOREALI’S RIGID VERSION OF THE NONDELEGATION DOCTRINE UNDERMINES ARTICLE IX’S PROTECTION OF DIVERSITY AND EXPERIMENTATION IN LOCAL GOVERNMENTAL STRUCTURE.

The inapplicability of Boreali to local agencies is not merely inconsistent with

plain constitutional text and precedents like Mooney but also with the basic

principles underlying Article IX’s grant of home rule powers to local governments.

28 

One important purpose of “home rule” is to give citizens the opportunity to design

their own system of local government, free from the structural rules that constrain

the state government. Such policy diversity allows successful systems of self-

government to become models for imitation while protecting the rest of the state

from the costs of less successful experiments in governmental structure. Paul A.

Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109, 1136

(2012) (“Because cities operate at a much smaller scale than the state or national

governments, a system of home rule generally allows cities to try out new policies

with less risk to the residents of the rest of the state and nation”). Thus, even

before the expansion of home rule authority in 1964, New York law has long given

different cities the power to experiment with different ground rules for local

democracy, such as allowing county commissions to fill vacancies by a

commission vote or allowing cities to adopt a city manager form of government.

Resnick v. Ulster County, 44 N.Y.2d 279, 286 (1978) (“[E]ven in the era when a

very narrow interpretation was given to the home rule provisions, municipalities

were accorded great autonomy in experimenting with the manner in which their

local officers, including legislative officers, were to be chosen”); Bareham v. City

of Rochester, 221 A.D. 36, 40 (4th Dep’t 1927) (upholding city’s adoption of city

manager form of government and noting that “[t]he City Home Rule Law was

evidently enacted to give cities broad local authority,” and reflected “a legislative

29 

realization of a diversity of views among our citizens as to ideal municipal

government and methods of obtaining it”). As the Resnick Court noted, a primary

purpose of home rule is to allow local governments to “choose that structure of

local government which is best tailored to serve particular community needs.” 44

N.Y.2d at 287.

One such option for allocating powers among local institutions is to give expert

agencies power to initiate policies independent from local elected politicians. New

York City’s Board of Health was expressly designed to have broad powers to make

policy independent from the Municipal Assembly (now, the Council). See Kara

Marcello, Note, The New York City Sugar-Sweetened Beverage Portion Cap Rule:

Lawfully Regulating Public Enemy Number One in the Obesity Epidemic, 46

Conn. L. Rev. 807, 831 (2013). Boreali’s prohibition on agencies’ creating their

own comprehensive set of rules on a “clean slate” without specific legislative

guidance, 71 N.Y.2d at 13, however, would severely undermine cities’ power to

confer independent policy-making authority on independent agencies.

Such a strait jacket on local experiments in political structure flies in the face of

the spirit of home rule in a wholly gratuitous way. The City Council enjoys ample

power to overrule Board of Health decisions with which their constituents

disagree, and local voters can also amend the charter to strip the Board of Health of

its broad law-making powers. The judicial invocation of Boreali to limit local

30 

agencies’ power, therefore, undermines local democratic accountability by

replacing local decisions to create strong independent agencies with judge-made

policies about how best to design city institutions. By imposing constitutional

doctrines governing state agencies on local agencies, the decisions undermine local

policies that “go to the heart of the local capacity for democracy and self-

governance,” because such decisions “reflect local preferences; they permit local

innovation; and they have little or no effects on other localities or on the state as a

whole.” Richard Briffault, Home Rule for the Twenty-First Century, 36 Urb. Law.

253, 266 (2004). There is no state interest in judicially suppressing local voters’

experiments in strengthening independent agencies through the mechanical

application of Boreali to local governments.

C. THE BOARD OF HEALTH’S PORTION-CAP RULE DOES NOT CONFLICT WITH PRINCIPLES OF LOCAL ADMINISTRATIVE LAW TO WHICH LOCAL AGENCIES ARE PROPERLY SUBJECT.

Local autonomy in designing agencies’ decision-making procedures is, of

course, not unlimited. There are well-established constraints on local delegations

to municipal agencies that insure that the agencies truly enjoy a mandate from the

local voters and respect the equality and due process rights of individuals. The

Board of Health’s portion-cap rule, however, does not offend such limits.

This Court has limited executive power to set new policy where no local law

whatsoever conferred power on the executive to make such policy. In Under 21,

31 

for instance, this Court held that the mayor could not use an executive order to

prohibit contractors from discriminating on the basis of sexual orientation. 65

N.Y.2d at 364. In reaching this decision, this Court relied on the principle that the

mayor could not “arrogate unto itself powers residing entirely in another branch,”

but instead must trace his actions back to some legislated grant of authority. Under

21, 65 N.Y.2d at 356. The Under 21 Court found that policymaking powers with

respect to sexual orientation were conspicuously absent from state and local

antidiscrimination laws, suggesting that the mayor’s rule on sexual orientation

lacked any imprimatur in legislation.

Under 21, however, has no application to the Board’s portion-cap rule, which,

unlike the mayor’s executive order banning discrimination based on sexual

orientation, is indisputably connected to a legislated grant of power. Section

558(c) of the charter confers on the Board of Health the power to amend health

code with respect to “all matters and subjects to which the power and authority of

the department [of health] extends.” Charter §556(c)(2) explicitly authorizes the

Department of Health “to supervise the reporting and control of communicable and

chronic diseases” (emphasis added), while §556(c)(9) grants the Department the

power to “supervise and regulate the food and drug supply of the city.” The Board

of Health, therefore, unquestionably has a legislated grant of power to amend the

health code with respect to chronic diseases like Type-2 diabetes, for which obesity

32 

is indisputably a risk factor.6 This Court need not delve into the policy question of

whether the portion-cap rule is the most effective way to grapple with the problem

of obesity and related diseases: It is sufficient to note that the link between the

Board’s rule and the legislative grant of authority contained in the charter is far

more specific and direct than the link between the mayor’s executive order in

Under 21 and any grant of power to the mayor to regulate discrimination based on

sexual orientation.

Aside from striking down executive policies wholly lacking any authority in

local law, this Court has also held that local agencies cannot use their adjudicative

powers to amend legislation that only the City Council has the power to enact. The

problem of local agencies illegally amending legislation through adjudication

arises most frequently in the context of zoning laws, where courts have repeatedly

held that planning commissions and boards of zoning appeals may not grant

special permits or variances that effectively amend the zoning code. In other

words, a municipal legislative body may not delegate such legislative power to

local agencies to set basic land-use policy through ad hoc parcel-by-parcel rulings.

See generally Patricia E. Salkin, 2 Am. Law. Zoning § 14:9 (5th ed.); Durante v.

Town of New Paltz Zoning Bd. of Appeals, 90 A.D.2d 866, 867 (3d Dep't 1982)

                                                            6 Moreover, the American Medical Association has recently recognized obesity itself as a chronic disease. See Andrew Pollack, A.M.A. Recognizes Obesity as a Disease, N.Y. Times, June 19, 2013, at B1.

33 

(“[A] legislative body may not confer power upon a zoning board of appeals absent

meaningful standards to contain the board's discretion.”) (citations omitted); Dur-

Bar Realty Co. v. City of Utica, 57 A.D.2d 51 (4th Dep't 1977), order aff'd, 44

N.Y.2d 1002 (1978) (holding that the delegation of power to grant or deny special

permits is improper where the legislative authority has failed to provide intelligible

standards).

Unlike local agencies empowered only to grant special permits or variances to

specific landowners, the Board of Health unquestionably enjoys rulemaking power

to amend the Health Code by enacting general and prospective rules. See Charter

§558(c). The Board of Health does not, in other words, merely implement rules

enacted by some other entity but rather is itself the source of the Health Code.

Moreover, because its rules are general and prospective, they do not give rise to the

concerns of due process, equal treatment, and fair notice raised by local agencies’

granting variances or special permits to particular individuals, thereby exempting

them from the zoning code to which other landowners are subject.

In sum, the Board’s portion-cap rule meets the legal standard appropriate to

local administrative agencies on which a municipal charter provision has conferred

general rule-making power. The portion-cap rule indisputably relates to the

“control … of … chronic diseases” specified in the grant of legislative authority,

and the generality and prospectivity of the rule insures that it does not single out

34 

particular individuals for discriminatory treatment. Whether such a rule meets the

various factors of the Boreali doctrine is immaterial, as those latter standards are

designed for the control of state agencies, not local agencies created by municipal

charters.

This Court has never held that Boreali’s rigid framework applies to local

governments’ administrative agencies. See, e.g., Casado v. Markus, 16 N.Y.3d

329, 337-338 (2011) (declining to rule on merits of argument based on Boreali

that, “in making distinctions based on tenant income, the Nassau County Rent

Guidelines Board trespassed on a sensitive policy area that is within the

Legislature's special province”). Lower courts have, however, uncritically

expanded Boreali’s test to limit the powers of municipal agencies, without any

acknowledgement that local governments draw their power from constitutional

sources different from those governing state agencies. See, e.g., Greater N.Y. Taxi

Assn. v. New York City Taxi & Limousine Comm’n, 42 Misc.3d 324, 972

N.Y.S.2d 513 (Sup. Ct. N.Y. County 2013) (applying Boreali to invalidate New

York City Taxi & Limousine Commission’s rule for design standards for taxis);

Ahmed v. City of New York, --- N.Y.S.2d ---- , 2014 N.Y. Slip Op. 24098 (Sup.

Ct. N.Y. County Apr. 8, 2014) (relying on Boreali’s four-factor test to invalidate

New York City Taxi & Limousine Commission’s rule allowed medallion owners

to deduct, from credit card receipts payable to taxi drivers, six cents for health care

35 

and disability coverage). This uncritical expansion of Boreali threatens to deprive

local governments of the essential freedom to experiment with systems of agency

accountability different from those used at the state level.

CONCLUSION

It is difficult to contemplate that this Court, through its decision in Boreali

twenty-seven years ago, intended to launch a full-scale revival of the

nondelegation doctrine in New York. The Boreali Court itself disavowed any such

aim, and subsequent opinions of this Court have occasionally backed away from a

wooden application of its “factors,” recognizing the administrative dysfunction that

would result. Nonetheless, as this case demonstrates, lower courts continue to

apply Boreali in a manner that constricts agency rulemaking and encourages—nay,

mandates—administrative tunnel vision and ineffectiveness. Amici, therefore,

respectfully urge this Court to reconsider Boreali and clearly repudiate the

stringent nondelegation doctrine that has flowed therefrom. At the least, the Court

should make clear that Boreali’s unique “circumstances” were just that, and that

this Court hardly intended to announce a four-“factor” “test” that can be used to

challenge any rule of any agency, state or local, adopted in New York.

It is also difficult to fathom that this Court in Boreali intended to announce a

“one-size-fits-all” rule for judicial review of administrative regulations, whether

adopted at the state or local level. Such an approach would be at cross-purposes