New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Mental Hygiene

Abdus-Salaam, J.

(concurring). The majority appropriately employs a flexible case-specific analysis of the New York City Board of Health’s authority and correctly concludes that when the Board issued the peculiar “Sugary Drinks Portion Cap Rule,” it exercised a power which no legislative body has delegated to it (see generally majority op at 690, 696-701). Because I agree with the core rationale and result of the majority’s opinion, I join that opinion in full. I write separately to emphasize the carefully circumscribed nature of the Court’s decision.

Importantly, in concluding that the Board exceeded the bounds of its health-related regulatory authority, the majority does not give dispositive effect to any single aspect of the Board’s conduct (see majority op at 696-697). As I see it, the majority determines that the Board improperly engaged in lawmaking based on the unique combination of the following characteristics of the portion cap rule: (1) the rule sets a broadly applicable policy affecting a large portion of the jurisdiction’s (New York City’s) population; (2) the rule involves a value judgment about voluntary consumer behavior; (3) the rule addresses a field of potential regulation that relevant legislative bodies have considered but not acted upon; and (4) the rule does not respond to a clearly identified, widespread health crisis which *702 has a simple, well-understood and agreed-upon cause, such as an infectious disease. In finding that these factors render the portion cap rule an impermissible political and legislative enactment, I do not understand the majority to establish any rigid decisional framework to be applied mechanically to other actions undertaken by the Board or separate administrative agencies in the future.

Contrary to the dissent’s assertions (see dissenting op at 702, 707-714), our decision does not signal any significant departure from existing precedent regarding administrative law in general or the scope of the Board’s authority in particular. As my colleagues in the majority and I explain (see majority op at 694-696), we have no quarrel with much of the dissent’s historical analysis of the Board’s authority or past decisions which have taken an expansive view of that authority in particular contexts. Indeed, no one should read today’s decision too broadly. We simply conclude that, under the circumstances of this case, the Board ran afoul of separation of powers principles by creating the portion cap rule.