Posts Tagged Seperation of powers

Quattuor, not trias politica. Delegation of legislative power to agencies. Gorsuch addresses the Montesquieuan elephant in the room.

Thank you Alison Frankel at Reuters for bringing to my attention Gutierrez-Brizuela v. Lynch. An immigration case which triggered a delightfully written judgment by Gorsuch CJ on the delegation of power to agencies. In particular the founding fathers’ intention, against the background of separation of powers,  with agencies room for statutory interpretation.

Both Ms Frankel’s article and judge Gorsuch’s pieces do much more justice to the debate than I can do in a blog post so I will leave readers first of all to read both. Judge Gorsuch, referring to precedent (Chevron in particular), notes

‘There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.’

Ms Frankel notes that Chevron directed courts defer to executive-branch agencies in the interpretation of ambiguous statutes. Justice Gorsuch reviews what exactly was intended by Chevron and points to the difficulty in excessive deferring to agencies’ interpretation of statutes.

I would summarise his views as ‘Congress meant trias, not quattuor politica.’

My knowledge of US civil procedure does not stretch to understanding what impact Gorsuch CJ’s views have on current US administrative /public law. Anyone out there who can tell me please do. At any rate, the judgment is great material for comparative constitutional law classes, the CJEU’s ECB (C-270/12) case being an obvious port of call.

Geert.

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Fuss rather than fizz. New York court’s reversal of ‘soda bucket ban’ only the first shot.

The New York State Supreme Court, in what I understand to be a decision of the interlocutory type and subject to appeal, has held as unconstitutional (vis-a-vis the NY Constitution, that is) the NY City Board of Health’s decision to limit the size of sugary soft drinks or ‘sodas’ sold in restaurants, movie theaters, stadiums and arenas at 16 ounces a cup. That’s 473 millilitres, slightly less than half a litre (500 millilitres or 50 cl) or roughly 100 ml less than what in the UK would be a pint (568 ml).  473 millilitres therefore would be the new maximum size – I have no experience with the current standard size however I understand that by default it must be much bigger than what is now being proposed. I remember some years back reading about a lawsuit in the US against Chrysler, whose new Voyager people carrier had cup holders which could not hold a one litre soda cup (one assumes this was a suit of the rather desperate type however one never knows).

Justice Milton Tingling essentially held that the Board’s decision trespasses on the powers of the legislative body, the City Council. Separation of powers, therefore, or Agency /delegation of powers, has decided this first shot in the soda war. Justice Tingling mentioned specifically that the judgment is not about the obesity epidemic, if any, and /or the contribution of soda drinks to same (he does remark that infringement of the separation of powers ‘(…) has the potential to be more troubling than sugar sweetened beverages’).

How far a State should go in regulating the unhealthy habits of its citisens is very much of the essence in this case – as is the importance for New York to somehow establish the link between practices targeted, and unwanted consequences on people’s health, the national health service, and the public purse. In the EU, this would create interesting musing under the precautionary principle (see also EFTA’s widely criticised Philip Morris judgment, which I have previously referred to). Appeal has already been announced.

Geert.

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