New York soda oral argument

A video of last week’s oral argument before the New York Court of Appeals in the challenge to the New York City soda portion-cap rule is available here.  (In releasing videos of its arguments, albeit a week after the fact, the New York Court of Appeals is decidedly not like the U.S. Supreme Court.)  Notable from the argument is the express and repeated insistence by the city’s lawyer, Richard Dearing, that the Board of Health exercises “legislative powers” delegated directly by the state legislature, which means that only the state legislature — and not the city council — can overrule the Board.  As I have explained here, and argued here,  this misguided argument plays into the soda industry’s view that the Board is a runaway “expert” agency lacking any democratic moorings.  Why not acknowledge the city council’s power to overrule the Board?  Mayor De Blasio would likely veto any such attempt if the rule stands, or he would at least be able to negotiate with the council from a position of strength.