Granholm v Heald/Swedenburg
v Kelly
Do state regulations that
permit in-state wineries, but not out of state wineries, to ship alcohol to
consumers violate the dormant Commerce Clause in light of the Twenty-first
Amendment?
The so-called �dormant� Commerce Clause limits to what
states may do to impede their sister states� trade. As a general rule, states
may not brazenly discriminate against out-of-state producers who wish to engage
in commerce within their borders. As the Supremes observed in 1949, �Neither
the power to tax nor the police power may be used�with the aim and effect of
establishing an economic barrier against competition with the products of
another state or the labor of its residents. Restrictions so contrived are an
unreasonable clog upon the mobility of commerce.�
In Granholm, the logic of the dormant
Commerce Clause meets the 21st �Amendment,
which gives states� considerable leeway to regulate liquor according to local
preferences. Since the late 1930�s, the Supremes have wrestled with the
contours of state power in this area. In Granholm,
the Justices will consider whether state laws that permit direct (Internet) wine
shipments by in-state producers but not
by out-of-state wineries run afoul of Commerce Clause principles.
Rhetoric around these cases is pitched, with advocates for the wineries
championing liberty and free trade and their opponents (including 35 states)
defending state integrity and health and safety concerns.
The
economics are easy: click here
for the explanatory brief by the AEI-Brooking Joint Center.�
The constitutional question is extremely tricky, and the circuits have
split.� Click here for the 2nd
and 6th
circuit opinion
Swedenburg
v. Kelly
Warnings from the Wine
and Spirits Wholesalers
Liberty gets a plug from Free
the Grapes
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