In a well-publicized decision, a New York State judge struck down New York City Mayor Bloomberg’s attempt to limit the sale of super-sized sugary drinks. Although the opinion focused on separation of powers, the judge also held the restriction lacked a rational basis. He found it arbitrary because there was no limitation on small-cup refills, some high-calorie drinks were unregulated and retail food stores were not controlled.

As law students are taught, rational basis is the lowest level of judicial scrutiny. It is rarely a ground for invalidating health and safety laws. Courts defer to the wisdom of the democratically elected branches, at least where no fundamental liberty interest is at stake. Obviously, there is no such interest here. To quote a former vice-presidential nominee, what is regulated in New York City is "just pop."

Health and safety laws tend to evolve gradually. As far as we know, there is no constitutional ban on incremental regulation. The regulation was a modest attempt to address the well-documented obesity health crisis. Limiting cup size may serve as deterrent, and inapplicability to lattes, milk shakes and retail food stores does not suggest irrationality.

Even if there were a better way, the U.S. Constitution, as Thurgood Marshall frequently remarked, "does not prohibit legislatures from enacting stupid laws." Whether regulating super-sized sugary drinks is wise is not a question that should be answered by judges. There is an important "distinction between constitutionality and wise policy."