I can’t see how it would be judicial malpractice to hear the case on retail interstate shipping. In fact, despite my desire for easier access to wine, i think it’s probably the right thing to do. Granholm is pretty clear. The 21st amendment doesn’t protect states against the dormant commerce clause. That means that the discriminatory statute is unconstitutional unless it advances a legitimate local purpose that cannot adequately be served by reasonable non-discriminatory measures. In Granholm, the states’ measures failed that test, but that case wasn’t about retail. And in the current case, the state of Tennessee won’t even put forth a reasonable basis and won’t defend the statute. The states simply conceded that the statute is purely protectionist, so you have the retailers arguing a position that seems totally at odds with Granholm.
But a retail shipping case is different. States would likely line up to argue a legitimate interest in preserving the three-tier system. It seems totally reasonable to let the states make their case and to let interested third parties submit briefs. It’s a very different case from Granholm or the Tennessee case.
I suppose one could argue that Granholm sets such a high bar that the states could never win, but that’s just conjecture and… Granholm was 5-4. In any event, letting the states make their case seems totally reasonable.
I think this is where we disagree. I don’t think retailer shipping is different. In Granholm the issue didn’t concern wineries producing anything. It concerned producers retailing something. Additionally, there is nothing in Granholm that explicitly or in dicta that limits the holdings to producers. This view is come to by cherry picking various lines of the decision from different places in the decision.
That said, the Three Tier System does come into play as you say. One of the things that concern me is that for the purposes of constitutional interpretation the three tier system has never been defined by the Court. What exactly is “unquestionably legitimate”. Advocates of discriminatory shipping laws have implied that a state’s entire body of alcohol regulations fall under the “three tier system”. I’d like the justices attack this question. Furthermore, I’d like to see the justices confirm that what’s unquestionably legitimate is a state’s regulatory structure that includes separate licenses for producers, wholesalers and retailers for the purpose of bringing products to the retail sale within the state. Producers and retailers outside a state with a three tier system are not part of that state’s three tier system, and therefore protectionist and discriminatory laws that impact interstate commerce are not unquestionably legitimate. Now, if the Court wants to hold that a state must justify these laws in a way that shows the state interest cannot be achieved by any other less restrictive means, I’d be happy with that too because I think we know that the state loses in that analysis.
I’ll say one more thing about what the Court will do in the present case: I don’t think the court can find a way to give Total a victory in the case without also giving those people challenging protectionist shipping laws in the lower courts considerable aid in their efforts because in order to find for Total, the Court must at least find that state laws concerning the retail tier are subject to the power of the dormant commerce clause, in the same way that laws concerning the producer tier were subject to restrictions imposed by the dormant commerce clause.
I agree on the commerce clause point in your third paragraph.
I guess I just don’t understand your argument that retail shipping isn’t different from Granholm.
In Granholm, the in state wineries were subject to an exception from the three tier system and that exception wasn’t available to out of state wineries. So two big differences from a retail shipping case. First, the statutes at issue in Granholm treated in and out of state interests differently on their face. And the states will argue that with respect to direct shipping at retail, unlike in Granholm, that both in and out of state interests are subject to the same set of rules: the three-tier system. Out of state sellers can sell through an in-state distributor. Second, by definition, in Granholm the states weren’t arguing whether they had a legitimate interest in preserving the three-tier system because the three-tier system wasn’t at issue with respect to the in-state interest. Rather, the question was whether it is discriminatory to apply an exception to the three-tier system only to in-state interests. So that means that the analysis called for by Granholm - whether or not the statute advances a legitimate purpose that cannot be served by non-discriminatory measures - was never considered in the case of retail shipping.
Alex,
In Granholm, the state and wholesalers all argued that the wineries were undertaking a direct assault upon the three tiers system. The Court found that wasn’t the case. Also, the state and wholesalers argued there was no discrimination since out of state wineries were able to get to get a winery permit just like in-state wineries had done. Also, out-of-state retailers may NOT sell through an in-state distributor. A state’s wholesalers are prohibited from procuring wine from an out-of-state retailer.
Additionally, the allowance for an in-state retailer to take internet orders and use a common carrier to deliver wine to consumers without a face to face transaction could and has been called an exception to a three tier system. This takes us back to the important question of what is this unquestionably legitimate three tier system?
This story suggests that the 21st amendment allows states to pass literally any law for any reason concerning alcohol and that Granholm was wrongly decided. Moreover, it suggests that if Total wins states will no longer be able to regulate alcohol. Finally it suggests that if Total wins, amazon and walmart will be able to direct ship to consumers in states.
This is not reporting. It’s an opinion piece. I’m big fan of opinion pieces, but you need to remember that they are written to persuade, into inform.
It is an interesting piece, for sure – sprinkled with facts but, as Tom says, pretty heavily peppered with opinion, starting off the bat from the title (“The Monopolist in the House” does not exactly carry the ring of journalistic neutrality). Understanding that the Intercept can’t stand any Democrat to the right of Lenin, it is odd that the columnist picks on this litigation as a way to slam Rep. Trone, given its lack of any apparent connection to any political position he has taken.