Remembering the soda portion-cap rule

While overshadowed by the end of the U.S. Supreme Court term and other news, the death of Mayor Bloomberg’s groundbreaking soda portion-cap rule before the New York Court of Appeals on June 26 merits critical attention.  I have written about the rule extensively in prior posts and a law review article.  Below the jump, I’ll focus on two important aspects of the court’s decision:  1) the application of the state constitutional law precedent of Boreali v. Axelrod (addressed in detail in the amicus brief I joined), which holds that when an agency makes “policy” it unconstitutionally encroaches upon the legislative branch, and 2) the court’s rejection of the City’s argument that the Board of Health exercises “legislative power.” Continue reading