Can we draft Justice Milton Tingling, the state judge who just issued a permanent injunction against the Bloomberg ban on large sized sugary soft drinks, for mayor?
Yes, Tingling would probably be horrified at the thought. But the best way to think of his ruling is as the start of the debate over what kind of city New Yorkers really want in the post-Bloomberg years.
Bloombergism has come to stand for a combination of high-handedness and sanctimony not seen under other mayors. Who can imagine Mayor Bloomberg approaching voters and even thinking to ask, “How’m I doing?”
It started with the ban on smoking. Then came the ban on trans-fats and the fight over fast-food menus. Next thing you know, the mayor’s public-health zealots were even trying to regulate how religious Jews conduct the ritual of circumcision.
The attempt to ban large soft-drink servings is but part of a pattern in Bloomberg’s New York. The smoking rules at least passed the City Council. Save for that, the common element in all these initiatives is an indifference to the public, hostility to choice and reliance on force.
Trans-fat is a classic example. Who remembers that initially, the mayor’s health commissioner, Thomas Frieden at the time, tried to put through the ban on a voluntary basis?
Of course, it didn’t work. Transfats make far and away the best and crispiest French fries and the flakiest pie crusts. No one eats either of them for their health.
So when no one went for Bloomberg fries voluntarily, the mayor imposed them by force.
The large-soda ban is, in and of itself, so wrong, arbitrary and capricious that even The New York Times is against it. Yet Judge Tingling is one of the few public officials who went beyond that to ask where the mayor got the power to do it.
Christine Quinn didn’t ask, though she leads the City Council. Republican candidate John Catsimatidis has failed to fault the mayor on the soda ban; he was quoted at a campaign stop as saying he wouldn’t want his own children drinking 32-ounce sodas. GOP frontrunner Joe Lhota was quoted the other day as saying he’d leave the ban in place if it were already in effect.
These are not the comments of leaders who voters can expect to address a galling sense among New Yorkers that they’ve been treated as children during the Bloomberg years. They are a sharp contrast to Judge Tingling, who emerged this week as a man on the public’s side.
What he did was give careful consideration to the actual powers granted to the mayor and his Board of Health. He did this by going back and studying all of the city’s charters, from 1686 all the way through 2012.
The Board of Health has some broad powers, he concluded — but they’re not unlimited. It’s empowered to impose regulations covering “communicable, infectious, and pestilent diseases,” as the judge put it.
But nowhere in any of the Board of Health’s powers, the judge found, is the authority to ban “a legal item under the guise of ‘controlling chronic disease’” — which is what the judge concluded the board was doing in the ban on big portions of soda.
In other words, Bloomberg had over-reached his power. He should have gone to the City Council.
The mayor is going to spend a fortune in public lawyering time appealing the ruling. He might win. But it’s unlikely he’d win such a soda ban in any serious legislature.
It’s something important to think about in looking for post-Bloomberg leaders. Do we want a mayor who’s prepared to bow to the laws under which he and his departments operate? Can we find a candidate who respects the legislative process and the standing of the council?
If not, a certain judge has made it clear that we have at least one public official who does.