by Charles Blazer

Created on: April 24, 2008

The question is not whether the ban is a good idea - it's whether the ban is constitutional. By this, I assume we are talking about the U.S. Constitution (which most of us are familiar with) and not the New York State Constitution (which I, at least, am not familiar with). So let's consider the question in the Federal constitutional context...

First of all, the Constitution only restricts government action, not the private conduct of individuals. So, do we have government action here? The answer is clearly yes - the NYC Board of Health is an administrative arm of the New York State government. So the Constitution clearly applies. But has the Board violated the Constitution's limits on its power? That question requires further analysis.

Under the 10th Amendment, all powers not expressly conferred on the Federal government or withheld from the States, by the Constitution, are reserved to the States. So if the Constitution has reserved this authority to the Federal government, then the State's action would be unconstitutional. In this case, however, only the Federal government's authority to regulate interstate commerce (via the Commerce Clause) would seem to apply. Thus, if the U.S. Congress has legislated in this area, under its Commerce Clause authority, and this legislation conflicts with the Board's action, then the Federal law would preempt the State law, under the Supremacy Clause.

Congress has legislated in this area by creating the Food and Drug Administration. The FDA may set limits on the amount of trans fats in food. But that does not necessarily mean that the Board's total ban conflicts with Federal law. Both rules can be simultaneously satisfied by having zero trans fat in food. Therefore, the Board's authority is only preempted if it is inconsistent with a Federal objective or if Congress has expressed a clear intent to preempt this area of law. The FDA's objective is to promote health and safety, and the ban is consistent with that. Likewise, Congress has not (yet) expressed an intent to preempt this specific area of law (this last form of preemption is rare and difficult to achieve, anyway).

So the State of New York need not worry about Federal preemption in this case. Under the principles of Federalism, it is free to act as a sovereign entity.

But the State's action may still be limited by other clauses of the Constitution. Typical challenges arise under the so-called "Dormant" Commerce Clause, the Due Process Clause, and the Equal Protection Clause.

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