“When you say virtually complete authority, and you’ve said several times the point of the Twenty-First Amendment, the purpose of the Twenty-First Amendment, the problem that I’m having in thinking about this is the text – the text of the Twenty-First Amendment does not support that, as I read it. You mentioned delivery or use, but it doesn’t just say the states have complete authority over delivery or use. It’s talking about the transportation or importation into any state. And why isn’t that most naturally read to allow states to remain dry and, therefore, ban transportation or importation but not to otherwise impose discriminatory or, as Justice Alito says, protectionist regulations?”
I’m not sure that either a wine retailer or an erratic former Seventh Circuit judge would be my chosen source for analysis of how the Supreme Court is likely to rule on a fairly tricky constitutional question. While I hope Posner (whichever one this is) is correct, I don’t have any particular reason to believe that he is.
Damn. The court either has to throw out almost all regulation with respect to alcohol, including 3-tier, interstate shipping, residency requirements, etc., or throw up its hands and say we’re just going to continue to allow the inertia of blatant discrimination and protectionism because it’s too much to change.
That poor “respondent’s” lawyer was between a rock and a hard place, arguing for his client while trying to avoid taking responsibility for pulling the keystone from the foundation of all alcohol regulation.
Or they could rule in a very narrow manner and say that that particular statute is unconstitutional.
, which the Tennessee attorney general basically agreed with.
The first thing that I think has to be noted is that I’m not sure there is any possible way the Court can rule on this case without saying whether or not the non-discrimination principles in Granholm applies to retailers. Clearing that up is a good thing.
Second, I think it’s entirely doable that the Court could reaffirm the constitutionality of a state-based three tier system (which they will define), while at the same time noting that the 21st Amendment did not give the states the constitutional power to discriminate against interestate commerce for the purposes of protecting in state interests.
Finally, it’s very doubtful this case will roll back winery shipping at all. It’s also doubtful that the case will directly address the impact on retailer interstate shipping. However, the holding in the case could very well give specific guidance to lower courts on how to rule on retailer wine shipping cases.
It’s now in the hands of the Justices. It’s likely they will issue an opinion sometime in late spring. Additionally, there are at least two wine-related shipping cases sitting in the lower courts (one in Michigan Federal District Court, another in the Seventh Circuit Court of Appeals concerning Illinois shipping laws) that are likely to be impacted by the outcome of the case.
I think the wholesalers lose on this claim:
"whole point of the Twenty-First Amendment was to constitutionalize the pre-Prohibition powers, which included the power to discriminate against out-of-state interests. "
But Phillips for the other side doesn’t come off too well.
Two hopeful signs -
1)the justices seemed to understand that Amazon is next, i.e. that online selling is going to be the next case and if they want to avoid hearing another case, they may even address online wine selling and shipping in their decision.
the questions don’t seem to break down along party lines or the “morality” of alcohol
Two cases were decided relatively recently. One in IL and one in MI. The Supreme Court case recently heard will impact both of those cases if it is one of those you are referring to.
I just read the transcripts. My bet is that the court decides the very easy case in front of it now and leaves the retail shipping question to be decided when the court is presented with that question in a subsequent case. At least two of the justices seem concerned about giving states the ability to meaningfully implement the three-tier system but who knows if that’s enough to overcome the dormant commerce clause argument. It’s very easy to see that case going in favor of the protectionist wine lobby.
Kavanaugh’s comment about the proper interpretation of the 21st amendment (quoted in a post above) strikes me as totally goofy. If a particular state just wants to be dry, it doesn’t have to regulate transport and shipment. It can just make possession illegal and shipment and transport into the state are automatically dead.
But the amendment doesn’t quite give them the power to make possession illegal - “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
I guess they’d get mileage out of “delivery or use”, but I don’t see any state imposing a ban at this point.
Those defending the residency requirement argued that as long as a state long does not discriminate against products or producers, the state was at liberty to pass any law, even if it was purely for protectionist purposes. The key here is not discriminating against products and producers. For 13 years the protectionists have been arguing that the non-discriminatiion principles outlined in the Granholm decision only apply to products and producers, but not to retailers. The first thing that came out of Justice Sotomayor’s mouth at oral arguments was, “we didn’t mean that”, to paraphrase. Or, put another way, the non-discrimination principles that were outlined in Granholm applied to retailers too. Based on this finding alone, the TN residency requirement must be overturned if four other justices agree with Sotomayor.
This is the easy part of the coming decision in my view. And the justices could stop right there. If they did, without any other explanation, then the direct shipping cases now waged against IL and MI would be decided against the state. The bans against retailer shipping would be overturned. And frankly, so would such bans in nearly any other state.
The “subsequent cases” that were referred to by Gorsuch and Kagen was them thinking about the shipping cases in the lower courts. Kagen came right out and said it to the attorney for Total Wine, who wants a very narrow decision: How can we rule in your favor (overturn the residency requirement) without also ruling in favor of the next case (read: shipping case). Gorsuch was more on the nose when he referenced “the amazon of wine”.
Personally, I think it would be judicial malpractice if the Court ruled in favor of Total and didn’t at the same time provide a series of findings explaining how and why they came to that decision and in the process solved the problem for the lower courts.