Category Archives: regulation

You Dumb ….

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That’s what New York State Supreme Court Judge Milton Tilling said to New York City’s lame duck mayor, Michael Bloomberg, on the latter’s…ill-advised…”sugary drink” ban.

Tilling opened his opinion by noting, correctly, the irrelevance of Bloomberg’s “obesity epidemic” motive for the ban—the question before him was simply the legitimacy, the legality, of the ban itself.  Motives, say I in expansion of Tilling’s point, are appropriate considerations only in determining sanctions, given a finding of illegality; they never can be justification for the illegality.

[The city does not have authority to] limit or ban a legal item under the guise of ‘controlling chronic disease,’ as the [city’s health department] attempts to do.  One of the fundamental tenets of democratic governance here in New York, as well as throughout the nation, is the separation of powers.  No one person, agency, department or branch is above or beyond this.

[The City Charter does not grant the health department] sweeping and unbridled authority to define, create, authorize, mandate and enforce [health codes governing food establishments and food preparation.  The soda ban] would not only violate the separation of powers doctrine, it would eviscerate it.

The judge’s beef here is that the health department just up and did the ban.  The ban was never approved by the city council.  The city’s elected representatives are the only ones who can create city law.  In fact these representatives had already explicitly rejected similar ban efforts.

Further, the Bloomberg Ban was unconstitutionally vague, capricious, and stupid.  (OK, I added that last part.  There is no Felony Stupid bar in New York’s or our Federal Constitution.)

The plaintiffs in this case pointed out that

…the Rule exempts soy based milk substitutes, but other milk substitutes such as almond, hemp and rice milk are not exempt.  The Rule also does not preclude unlimited free refills or multiple purchases of 16-oz. beverages or providing unlimited sugars after purchase at the regulated businesses….

And so on.  Tilling agreed.

The court finds that the regulation herein is laden with exceptions based on economic and political concerns. … The statement of financial costs related to the chronic epidemic [by the defendants] further evidences a balancing being struck between safeguarding the public’s health and economic considerations.  This is impermissible….

Further (the motive rejection above notwithstanding),

…the stated premise of…the Rule is to address the rising obesity rate in New York City. … The Rule is nevertheless fraught with arbitrary and capricious consequences.  The simple reading of the Rule leads to…uneven enforcement even within a particular City block, much less the City as a whole.  Furthermore…the loopholes in this Rule effectively defeat the stated purpose of the Rule.  It is arbitrary and capricious because it applies to some but not all food establishments in the City, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the Rule, including but not limited to no limitations on re-fills, defeat and/or serve to gut the purpose of the Rule.

 

Tilling’s ruling can be read here or here.

Regulatory Reform

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The eyes of Texas are upon us….

Competitive Enterprise Institute‘s OpenMarket.org describes regulatory reform, Texas style.  In 1977, Texas enacted legislation that automatically kills state-level agencies after a named duration unless a subsequent legislature explicitly votes to extend that agency.  More, the question of extension isn’t even permitted to come up for a vote unless a Sunset Advisory Commission favorably recommends it first.

OpenMarket notes the results:

Through this process, the commission [10 legislators and 2 members of the public] has abolished 78 state agencies and saved $945.4 million in a 29-year period [through 2006].  Since the Sunset Commission’s expenditures over this time period were just $32.8 million, every dollar spent on this program has yielded about $29 in return.

We don’t have a bloated government here.  And surviving agencies exist because they actually do their jobs, and so they’re capable of justifying their existence to the commission—and to the Texas citizenry through those two public members.

Maybe the Federal government needs a similar Act—not addressing only the agencies, but the Cabinet Departments, as well.

Texas’ law can be read here.

Good Idea, Bad Law

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It’s useful for a jurisdiction to control property use through zoning laws—whether to keep unsavory but legal businesses away from children, to preserve an historical building/neighborhood, and so on—provided those restrictions don’t get too onerous or too intrusive on the property rights of the owner(s).

Sometimes, though, a well-intended law has unintended consequences.

In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division [of New Jersey] found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws.  The panel strictly construed a statute that says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.

Contaminating this seeming miscarriage of justice, though [emphasis added],

In August 2009, [property owner Daniel] Motley requested and obtained a permit to repair and renovate the house and replace the air-conditioning unit.  The permit carried a notation that siding, shingles and windows could be added, but no bumpouts were allowed and the structure could not be expanded.

Once work began, however, the building, not lived in for some time, was found to be in worse shape than expected and uninhabitable.  Among other problems, the roof and water system leaked, part of the first floor ceiling had collapsed, floor beams were rotted and the main center beam was sagging.

This has implications for homeowners attempting to repair/rebuild their homes and businesses in the aftermath of Hurricane Sandy: the storm’s destruction of buildings will cancel any variances granted, even though these buildings will have been continuously occupied and the spirit of the variances honored throughout.

New Jersey’s Appellate Division ruling on essentially destroyed property thus seems counterproductive; however, the court made the correct ruling: being unable to strike the law as unconstitutional, it applied the law as written.  The failure is in the law itself, not in the ruling.

Now it’s on the New Jersey legislature to correct this evident injustice.

2nd Amendment

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Fox News is reporting that Magpul Industries, a maker of accessories for firearms—magazines, sights, grips, and the like—has told the Colorado statehouse that if a bill to restrict the size of ammunition magazines is passed, the company will relocate out of the state.

It’s a bold threat from a company that, by its founder’s admission, has distanced itself from politics.

This company deserves our support.  Perhaps it should have been more political throughout its existence (Plato’s and Pericles’ admonishments apply to our businesses as well as to ourselves), but in the present case, the company’s focus on its business makes its stand the more principled.

Naturally, Colorado’s democrats are unimpressed.  State Senator Jessie Ulibarri (D) said

When you have the means available to you at every single corner to commit a horrendous act, we will continue to see what we’ve seen, which is the status quo, where unfortunately gun violence and violence in general is prevalent in our communities[.]

Ulibarri should look in a mirror.  Those acts include the party power to ramming through ill-considered legislation that addresses the wrong problem while deprecating individual rights.

It’s an idiotic bill, too, aside from an immoral one.  As Magpul’s Founder and President, Richard Fitzpatrick, pointed out,

smaller magazines can be easily connected to each other—magazines can be hooked up to make a 60-round magazine, for example—and the company fears it would legally liable if people were to do that.

The idiocy goes further: Fox News says

Democrats have tried to ease Magpul’s fears, amending the bill to make clear that the company can still manufacture magazines of any size, as long as they’re sold only out-of-state, to the military or law enforcement.

As if that’ll keep the offending magazines out of the state.

Like I said, this company deserves our support.

Sessions on Progressive Obstructionism

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Senator Jeff Sessions (R, AL) in his closing remarks preparatory to casting his vote on the Jack Lew confirmation last Wednesday, had this to say on a related matter.

I would also like to place this [confirmation vote] in a wider context.

Today is the 1,400th day since Senate Democrats passed a budget.  Why has this gone on so long?  Because they decided it would be better to offer no solution, no plan to help struggling Americans, and instead to tear down anyone who dared to offer a plan to solve our nation’s economic problems.

This is the heart of the problem here in Washington right now.  We have one political party that sees the budget debate as exercise in political warfare, not problem-solving.

At the center of this strategy is the White House.

In his campaign for re-election, President Obama repeatedly said that he had a plan to “pay down our debt.”  He even ran a campaign ad saying: “I believe the only way to create an economy built to last, is to strengthen the middle class—asking the wealthy to pay a little more so we can pay down our debt in a balanced way.  So we can afford to invest in education, manufacturing, and home-grown American energy, for good middle class jobs.”

But this is all totally false.

Again, this was the strategy: offer a plan that does nothing to alter our dangerous debt course while pretending the opposite.

Then, once you’ve done that, attack anyone who dares to reduce the size of the bureaucracy.  Attack anyone who suggests Washington is too powerful.  Attack, attack, attack—while never offering anything to help Americans who are struggling every day.

After the White House budget was submitted in 2011, President Obama spoke at George Washington University and, with Congressman Paul Ryan sitting in front of him, and said:

“One vision has been championed by Republicans in the House of Representatives….  It’s a plan that aims to reduce our deficit by $4 trillion over the next ten years….  But the way this plan achieves [that goal] would lead to a fundamentally different America than the one we’ve known throughout most of our history….  This is a vision that says up to 50 million Americans have to lose their health insurance in order for us to reduce the deficit.  And who are those 50 million Americans?  Many are someone’s grandparents who wouldn’t be able afford nursing home care without Medicaid.  Many are poor children.  Some are middle-class families who have children with autism or Down’s syndrome….  These are the Americans we’d be telling to fend for themselves.”

Majority Leader Reid said of one Republican reform effort that it was “a mean-spirited bill that would cut the heart out of the recovery that we have in America today….  It goes after little children, poor little boys and girls….  We want them to learn to read.”

This is how the White House and Senate Democrat leaders approach the budget debate.  It’s the same strategy with the sequester.  And Republicans, candidly, have not done enough to stand up to these egregious slanders.  Voting against Jack Lew would be a vote against these dishonest tactics. Misrepresentation of fact.

The painful truth is, the White House strategy has been largely successful up until now.  President Obama and his Senate Majority have blocked fiscal reform and continued our path to fiscal disaster.

It is time that we pointed out that the establishment they are shielding from cuts—the big-government apparatus they are defending—is hurting people every day.  Their policies, their endless support of the bureaucracy, has created poverty and joblessness and dependency.  In cities like Baltimore, Detroit, and Chicago—governed almost exclusively by Democrats at every level—good, hardworking people are hurt every day by the policies of the Left.

  • In the city of Baltimore, one in three children live in poverty.  One in three Baltimore residents are on food stamps.
  • In Chicago, there were roughly 500 homicides in 2012.  Fifty-one percent of the city’s children live in a single-parent family.
  • In Detroit, almost one in three households had not a single person working at any time in the last 12 months.  The city’s violent crime rate is among the worst in the country.  More than half of all Detroit children live in poverty.

This should not happen.  These are the consequences of leftist policies.  We are fighting to create jobs, to create rising wages, to create opportunity, to help more people earn a good living and care for themselves financially.  We are trying to lift people out of poverty, to strengthen family and community.  And we are trying to protect the good and decent people of this country from a debt crisis.

What he said.