New York's War on Fat

By now, everyone has heard about New York's valiant attempt to abridge the fundamental freedom to gorge oneself on all manner of unhealthy comestible products leading inexorably to their death. Some think this is a healthy move, others see it as the act of a nanny state. In all likelihood, the audacity of New York state will infect the withering will of other states spreading a totalitarian movement of bad taste.

Luckily, the founding fathers wrote a provision in the Constitution to prevent this intrusion onto culinary liberty. Article I, section 8 contains a provision known as the Commerce Clause provides plenary power to the United States Congress to regulate commerce between the states. This aims to create uniformity among the member-states of the federal union and enforce notions of comity among the states by preventing one state from enacting a law concerning commerce that would effect another state. In Swift & Co. v. United States, the United States Supreme Court determined that state regulations on commerce may not directly or purposefully effect the operation of interstate commerce. The only way such a law may pass Constitutional muster is if the effect is minimal or accidental.

The dormant commerce clause may have lingering effects in this case as well. Generally speaking, the dormant commerce clause operates as a check against states to prevent them from creating laws that impermissibly favor local businesses over national businesses. The modern form of this area of the law analyzes the effect on business in other states. Under either analysis the trans fat ban violates the Constitution. The leading restaurant chains who employ trans fats are national fast food chains. This New York law, though beneficial in its intent, would alter the operation of these businesses all over the country either requiring special products just for New York, or changing the product they sell nationally. Through the lens of the dormant commerce clause, this law would also run afoul of the Constitution because it favors smaller in-state businesses who can easily adapt to the change required by the law. Regardless of how successful the law may be at keeping citizens' waists trim, the law may not survive constitutional scrutiny.