Milking The Oenophile
The Twenty-First Amendment and State Discriminatory Wine Import Policies
Vol. 5
January 2005
Page
2. The Dormant Commerce Clause
B. United States Supreme Court Case Law
1. State Board of Equalization v. Young's Market Co. 18
2. Bacchus Imports, Ltd. v. Dias
3. Brown-Forman Distillers Co. v. New York State Liquor Auth.
4. 44 Liquormart, Inc. v. Rhode Island
5. Hillside Dairy Inc. v. Lyons
A. Decisions Finding an ADSL Constitutional
B. Decisions Finding an ADSL Unconstitutional
A. Hillside Suggests That the Current Supreme Court May Abandon the Modern Accommodation approach
B. Out-Of-State Winemakers Should Not Be Subject To Intrastate Three-Tier Distribution Systems
Introduction
Section two of the Twenty-First Amendment "empowers Indiana to control alcohol in ways that it cannot control cheese."[1] When Judge Frank Easterbrook penned these words, a reader might have thought that the issue turned on the fungible differences between food and drink. Yet, the present cause of concern for oenophiles is significantly more complex; perhaps even more so than the wine they drink. During this term, the United States Supreme Court will hear arguments on a matter that will have broad economic impact for winemakers and vinolent consumers.[2] The Court is set to determine whether States can pass laws restricting interstate shipment of out-of-state wine.[3]
Roughly twenty-six states currently subject wine aficionados to regulatory prohibitions on most direct interstate shipments of wine.[4] These states have non-uniform laws that, in varying degrees, restrict free enterprise.[5] Adversely affected parties have responded by attacking the constitutionality of state alcohol direct shipment laws (ADSLs) that prohibit direct wine shipments.[6] They assert that while the Twenty-First Amendment repealed prohibition, it did so without giving states the unfettered right to pass such discriminatory alcohol regulations.[7]
In response to these laws, the wine industry has argued that ADSLs violate dormant Commerce Clause principles, because they create a regulatory scheme that discriminates in favor of local sellers.[8] Wholesalers, industry groups, and several states respond that the plain meaning of the Twenty-First Amendment creates an exemption from such analysis.[9]
Courts have responded to these arguments without reaching a clear consensus. Two federal circuit courts have evaluated the constitutional imbroglio that ADSLs present and have upheld bans on direct alcohol shipments.[10] Other circuit courts have disallowed ADSLs, holding that they discriminatorily control alcohol purchases.[11] With the help of some preeminent legal minds, the current conflict has achieved some legal notoriety.[12]
Nevertheless, the recent United States Supreme Court decision in Hillside Dairy Inc. v. Lyons may further the oenophile's cause. In Hillside, the Court held that the dormant Commerce Clause applied to analogous discriminatory California milk laws.[13] The Hillside Court contemplated issues strikingly similar to the ADSL questions that have confronted the lower federal courts.[14] Hillside is noteworthy because the Court indicated that it recognizes a presumption of invalidity for discriminatory state statutes.[15] While the Supreme Court has not decided an ADSL case since the Twenty-First Amendment's ratification, the reasoning in Hillside provides insight on how the Court may ultimately decide the matter. [16]
This Comment discusses the implications of Hillside and argues that ADSLs are an egregious violation of constitutional rights. According to the dormant Commerce Clause jurisprudence, a state may not enact ADSLs that discriminatorily abridge a wine-shipper's right to pursue a lawful sale. Part I discusses the Twenty-First Amendment and the dormant Commerce Clause. In addition, Part I presents an overview of several Supreme Court decisions necessary for an understanding of Twenty-First Amendment jurisprudence. Part I then discusses the recent Hillsidedecision. Part II introduces the current circuit split in ADSL cases by examining four representative cases. Part III then provides an analysis of the current circuit split and argues that ADSLs are unconstitutional under the dormant Commerce Clause. In addition, Part III presents an additional basis for finding ADSLs unconstitutional; one that underscores the importance of a more pragmatic approach to resolving the issues.
Unusually, alcohol regulation falls under two constitutional amendments.[17] This unique arrangement fosters much of the complexity in direct shipping litigation. To help readers fully understand the status of current ADSL proceedings, Part A of this section discusses Twenty-First Amendment history. Part A also provides a short background on the dormant Commerce Clause. Part B then briefly summarizes several appurtenant Supreme Court decisions. Finally, Part B discusses the Supreme Court's recent decision in Hillside Dairy Inc. v. Lyons.
The Twenty-First Amendment, and its interaction with other constitutional provisions, fundamentally affects the way in which courts resolve the issues in ADSL litigation.[18] Yet, as the United States Supreme Court recently noted, the legislative history of the Twenty-First Amendment is obscure.[19] The Court has not precisely defined the Twenty-First Amendment's boundaries.[20] Therefore, a few words on the Twenty-First Amendment and the dormant Commerce Clause should help clarify the issues discussed in this Comment.
Prohibition, embodied in the Eighteenth Amendment, made previous congressionally-enacted alcohol legislation obsolete.[21] Yet, as a one-size-fits-all scheme (imposing prohibition on all states), prohibition failed to satisfactorily resolve the social and economic problems alcohol presented.[22] The public outcry over the Eighteenth Amendment created a new movement dedicated to ending the government's interdiction on alcohol use.[23] Thus, in 1933, Congress officially enacted the Twenty-First Amendment, thereby ending prohibition.[24] The text of the amendment reads as follows:
Sec. 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Sec. 2. 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.
Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [25]
Ostensibly, the Twenty-First Amendment gives states a constitutional basis for regulating alcohol distribution by prohibiting the delivery of alcohol "in violation of the laws" of each state.[26] To provide statutory clarity to the text of the Amendment, Congress subsequently enacted the Liquor Law Repeal and Enforcement Act in 1935.[27] In recent cases, states have argued that the Act conveys powers to states superseding those implicitly granted to Congress under the dormant Commerce Clause.[28] Yet, several courts have noted that the Act does not reconvey power to the states, because Supreme Court's interpretation of the Twenty-First Amendment must be read in conjunction with the Act.[29] According to this view, the Twenty-First Amendment only partially immunizes states from dormant Commerce Clause concerns, and the Act may not be read to preclude a Commerce Clause analysis.[30]
Two additional congressional acts are important to an understating of current ADSL litigation. First, in 2000, Congress passed the Twenty-First Amendment Enforcement Act.[31] This Act grants state attorneys general the power to sue in federal court for injunctive relief against out-of-state violators of state alcohol regulation.[32] The Act does not resolve the issues regarding the constitutional legitimacy of ADSLs, because Congress expressly limited its construction to jurisdictional issues.[33]
Second, in 2002 Congress enacted the Department of Justice Appropriations Authorization Act, which contains a provision authorizing limited direct shipping of wine in certain circumstances.[34] This provision grants exceptions for winery visitors who wish to have wine shipped to their homes, where ADSLs would otherwise prevent such shipments.[35] Nevertheless, the statute applies only during a period where the Federal Aviation Administration has passenger safety restrictions, which ban travelers from transporting wine onboard commercial aircraft.[36] While the Act currently grants exceptions for some travelers[37], it does not decisively resolve relevant ADSL issues.[38] The Act may indicate that Congress has embraced direct shipping, albeit temporarily.[39] On the other hand, Congress may be reserving its power to weigh in on the issue at a later date.
In addition to the Twenty-First Amendment, a short explanation of the dormant Commerce Clause will help the reader to better understand current ADSL litigation. Traditionally, courts construe the dormant Commerce Clause as an implied restriction prohibiting states from enacting discriminatory or unreasonably burdensome legislation affecting interstate commerce.[40] Thus, a state law implicates the dormant Commerce Clause when it affects interstate commerce in an area that Congress has not chosen to regulate.[41] This "nontextual negative command" or "dormant" aspect of the Clause may thus preempt state regulation of interstate commerce.[42]
Courts' approaches to dormant Commerce Clause analysis in ADSL litigation depend on how they view its interplay with the text of the Twenty-First Amendment.[43] Courts have generally taken two analytical approaches: a "broad standard rule" or a "modern accommodation standard rule."[44] The earliest Supreme Court decisions adopted the Broad Standard Rule, viewing the Twenty-First Amendment as authorization for states to exert almost unfettered control over alcohol use.[45] More recent Supreme Court opinions adopt the Modern Accommodation Rule, emphasizing a need to harmonize the Twenty-First Amendment with the dormant Commerce Clause.[46]
The Modern Accommodation approach embodies a two-tiered balancing test under which a court must first evaluate the statute under the dormant Commerce Clause and then under the Twenty-First Amendment.[47] Under the first tier, a court evaluates how the state law affects interstate commerce to see if it unconstitutionally discriminates against out-of-state interests.[48] The court first considers whether the state law applies to residents and non-residents evenhandedly.[49] Where a statute discriminates either facially or by its effect on commerce, the courts will generally strike it down as a violation of the dormant Commerce Clause.[50]
Where the statute survives the initial part of the first tier analysis, the court then applies a balancing test.[51] The courts will generally uphold an evenhanded statute, provided its burden on commerce does not outweigh the law's local benefits.[52] The state must show that the law serves a legitimate local purpose that could not be achieved in a less discriminatory manner.[53] The court will hold the statute invalid unless it survives this analysis.[54]
In the second tier, the court must then determine if the Twenty-First Amendment can "save" the law from invalidation.[55] The court must evaluate whether the statute sufficiently implicates the Amendment's "core concerns."[56] Yet, the Supreme Court has never precisely defined such core concerns.[57]
It is worth noting that the Supreme Court has never explicitly overruled the Broad Standard approach. Consequently, the Court has applied both the Broad Standard and Modern Accommodation Standard approaches in recent cases.[58] Yet, the Court's more recent trend has been to follow the Modern Accommodation approach.[59]
United States Supreme Court Case Law
The Supreme Court has decided several cases involving the interplay between the dormant Commerce Clause and the Twenty-First Amendment.[60] This section discusses several representative cases that set forth the Broad Standard and Modern Accommodation Rules. Additionally, a discussion of a recent Supreme Court case, Hillside Dairy v. Lyons, provides insight into how the Court may approach the Heald and Swedenburg cases to which it has recently granted certiorari.
The Supreme Court's Broad Standard approach began in 1936 with State Board of Equalization v. Young's Market Co.[61] Following the passage of the Twenty-First Amendment, the Supreme Court initially gave states an almost unfettered ability to regulate alcohol.[62] In writing for the majority, the prescient Justice Brandeis may have foreshadowed the current direct shipping debate in noting that the Twenty-First Amendment "forbid[s] all importations which do not comply with the conditions which it prescribes."[63]
In Young's Market, the Court upheld a California liquor statute that imposed a fee on beer imported into the state.[64] The Court recognized that the Twenty-First Amendment gives the state authority to broadly control its alcohol policies.[65] Numerous cases followed Young's Market in recognizing state power to regulate commerce in alcohol, unhindered by dormant Commerce Clause considerations.[66] Noting what seemed to be an uninterrupted line of authority from the earliest cases until Bacchus Imports, Ltd. v. Dias, at least two current Justices have indicated their belief that the Broad Standard approach in Young's Market is still good law.[67]
The Supreme Court shifted away from Young's Market by adopting the Modern Accommodation approach in Bacchus Imports, Ltd. v. Dias in 1984.[68] In Bacchus, the Court held that Hawaii's tax on interstate alcohol shipments unconstitutionally violated the dormant Commerce Clause, given its inherently discriminatory purpose and effect.[69] The Hawaiian legislature had exempted several Hawaiian-made products from the tax to aid the local liquor industry.[70]
The majority in Bacchus departed dramatically from Young's Market and its progeny in finding that alcohol shipping regulations are still within the purview of the dormant Commerce Clause.[71] In Bacchus, the Court indicated that it would almost always invalidate facially discriminatory statutes.[72] The Court recognized a need to consider the interaction between the principles of the Twenty-First Amendment and the dormant Commerce Clause.[73] While the Bacchus majority developed the Modern Accommodation two-part framework for analyzing ADSL cases, the Court did not formulate the specific analytical steps necessary in the first tier of the Modern Accommodation approach.[74] These steps were detailed in the later case of Brown-Forman Distillers Co. v. New York State Liquor Auth. discussed below.[75]
Despite the clarity the Bacchus rule may provide, critics have attacked the opinion.[76] They argue that the majority used precedent out of context.[77] Critics also argue that the majority cited cases irrelevant to proper analysis.[78] In Bacchus, several Justices dissented, voicing their adherence to the Broad Standard view.[79] In addition, at least one recent Supreme Court decision appears to limit Bacchus's core concerns approach while upholding a state's right to regulate alcohol sales.[80]
New York StateLiquor Auth.
Two years after Bacchus, the Supreme Court heard another case pitting the Commerce Clause against the Twenty-First Amendment.[81] In Brown-Forman Distillers Co. v. New York State Liquor Auth., the Court struck down a state statute that regulated commerce extraterritorially.[82] The Court applied the reasoning from Bacchus in noting that it would evaluate state actions under both the Commerce Clause and the Twenty-First Amendment.[83]
In Brown-Forman, the Court further clarified the first-tier of the Modern Accommodation approach.[84] Under Brown-Forman's first-tier analysis, the Court employed a two-part approach.[85] First, the Court formulated a virtually per-se rule that states may not constitutionally enact certain discriminatory statutes.[86]
In the second part of Brown-Forman's first-tier analysis, the Court applied a balancing test.[87] Under this approach, courts must weigh certain factors in examining state statutes.[88] Essentially, the state must show that the law serves a legitimate state purpose that cannot be achieved in a less discriminatory manner, or the court will hold the law invalid.[89]
Rhode Island
In 44 Liquormart, Inc. v. Rhode Island, the Supreme Court indicated that it might depart from the Modern Accommodation approach recognized in Bacchus.[90] In Liquormart, the Court reversed a Rhode Island Supreme Court decision that had dismissed an appeal by a liquor retailer challenging a price advertising ban.[91] The Court held the ban unconstitutional under the First Amendment, because it abridged the free speech rights of advertisers.[92]
In addition to its First Amendment analysis, the Court in Liquormart signaled a possible return to the Broad Standard approach.[93] Specifically, the Court stated that the Twenty-First Amendment gives states power to prohibit commerce in, or use of, intoxicating liquors.[94] Thus, the Amendment limits the reach of the Commerce Clause.[95]
Lyons
While not implicating the Twenty-First Amendment, Hillside Dairy Inc. v. Lyons may nevertheless help illustrate the analytical approach the current Court would take on an ADSL matter.[96] In Hillside, the Supreme Court in 2003, reaffirmed previous holdings that the dormant Commerce Clause applies to challenges of state regulatory provisions.[97] The Hillside Court held that the discriminatory effect of a state provision renders it subject to disparate treatment claims under the dormant Commerce Clause.[98]
In Hillside, the Court heard an appeal from out-of-state dairy farmers who had sued the state of California, challenging a pooling regulation.[99] The Court considered whether to exempt the pooling mechanism from Commerce Clause scrutiny despite the statute's facial neutrality.[100] The Court held that the farmers' Commerce Clause claim could be heard.[101] Further, the Court held that even absent facial discrimination, the statute could not overcome its discriminatory effect and thus was subject to dormant Commerce Clause analysis.[102]
The Hillside Court recognized a presumption against the validity of discriminatory regulations.[103] Yet it also signaled that courts must undertake a literal examination of congressional enactments to determine whether Congress had authorized the state regulation in question.[104] Specifically, the Court noted that it would not assume that Congress had authorized a discriminatory action "unless such an intent is clearly expressed."[105] Nevertheless, it remains unclear how the Court might analyze ADSLs under dormant Commerce Clause scrutiny.
Split
In tracing the emergence of a body of law that deals with alcohol, this article presents a history of mutable approaches to resolving disputes over states' rights. Since the adoption of the Twenty-First Amendment, early Supreme Court cases such as State Board of Equalization v. Young's Market Co. imposed a Broad Standard approach to resolving dormant Commerce Clause issues. Thereafter, cases such as Bacchus Imports, Ltd. v. Dias, and Brown-Forman Distillers Co. v. New York State Liquor Auth. demonstrated a Modern Accommodation approach to resolution of similar matters. With the recent cases of 44 Liquormart, Inc. v. Rhode Island, and Hillside Dairy Inc. v. Lyons, it appears that the Court has not yet clarified its approach.
Despite the existence of a substantial amount of Twenty-First Amendment litigation and history, the Supreme Court has not yet provided a definitive framework for determining the constitutionality of an ADSL.[106] Litigants have presented the federal courts with ADSL cases on at least seven different occasions.[107] The resulting appellate opinions evidence a clear split in authority, with two courts finding that ADSLs do not fall under the ambit of dormant Commerce Clause protection,[108] and other courts taking the view that the Commerce Clause and Twenty-First Amendment interact to limit a state's right to enact ADSLs.[109] This section details the current circuit split with an analysis of several representative decisions.
Only two federal appellate courts have found a state ADSL constitutionally permissible.[110] In the first decision, Bridenbaugh v. Freeman-Wilson, the Seventh Circuit upheld Indiana's direct shipment ban.[111] In Bridenbaugh, Indiana appealed a district court ruling that its ADSL was unconstitutional.[112] In the district court, consumers had successfully challenged the ADSL statute, which prohibited all direct shipments of wine into the state by any person in the wine-selling business.[113]
On appeal, the Seventh Circuit reversed.[114] The court noted that Indiana's ADSL required all alcohol sales to pass through its state distribution system regardless of origin.[115] Therefore, the Court concluded that the ADSL regulated evenhandedly and thus was not subject to Commerce Clause scrutiny under the Modern Accommodation approach.[116]
In choosing the Broad Standard analytical approach, the court expressed its aversion to the dormant Commerce Clause.[117] Bridenbaugh's treatment of the constitutional question essentially dispensed with the dormant Commerce Clause analysis in Bacchus.[118] Instead, the court rejected Commerce Clause scrutiny in favor of a literalist approach that focused on Section Two of the Twenty-First Amendment.[119]
Four years after Bridenbaugh, the Second Circuit decided Swedenburg v. Kelly.[120] The Second Circuit adopted the Broad Standard approach from Bridenbaugh, recognizing that the text of the Twenty-First Amendment saved the statute.[121] Like Bridenbaugh, the state in Swedenberg contested a lower court decision overturning the ADSL on constitutional grounds.[122] The state successfully argued that the ADSL regulated evenhandedly and thus was facially neutral.[123] While the Second Circuit ultimately found provisions of the ADSL unacceptable on First Amendment grounds, it clearly stated that the Twenty-First Amendment permitted New York to control alcohol use.[124] The Swedenberg decision is one of the cases that the Supreme Court will hear this term as it examines these issues.
Since the Bridenbaugh decision, no appellate court has found a state ADSL fully constitutional.[125] In the remaining decisions, all the courts have found the ADSLs at issue unconstitutional as drafted.[126] With the exception of Swedenburg, most recent cases have fallen within this group of decisions.
In one of the most poignant examples of an ADSL found to violate the dormant Commerce Clause, the Fifth Circuit ruled against the state regulatory scheme in Dickerson v. Bailey.[127] In Dickerson, the court used a Modern Accommodation approach to find Texas' ADSL facially discriminatory and unconstitutional.[128] The court recognized the validity of the state's three-tier distribution system.[129] Yet, in Dickerson, the legislative record indicated the presence of a discriminatory intent behind the ADSL.[130] Therefore, the Dickerson court concluded that the proper remedy was a full injunction against the law.[131]
More recently, the Sixth Circuit in Heald v. Engler found that Michigan's ADSL contained implicit discrimination in violation of the dormant Commerce Clause.[132] On appeal from an earlier district court decision granting summary judgment to the state, the Sixth Circuit reviewed the constitutionality of Michigan's ADSL system.[133] The Heald court used a Modern Accommodation approach in determining that the validity of Michigan's ADSL required a balancing test, and that the implications of any relevant core concerns were nonexistent.[134] The Sixth Circuit reversed the district court decision. The court noted that its inquiry focused on whether the ADSL advanced "a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives."[135]
Both the Broad Standard approach used in Bridenbaugh and Swedenburg, and the Modern Accommodation approach used in Dickenson and Heald serve as evidence of a circuit split.[136] The application of Commerce Clause analysis to state ADSLs is not yet consistent throughout the country.[137] Thus, the correct analytical approach to resolving ADSL questions requires clarification by the Court when it decides the issue.[138]
Perhaps recognizing the important constitutional question presented in ADSL litigation, the Supreme Court of the United States consolidated Heald with Swedenburg for review this term.[139] In Heald, Michigan's Attorney General appealed to the Court for review, while in Swedenburg the respondent appealed the case. The Court limited the question for review to whether a state regulatory scheme violates the dormant Commerce Clause when it restricts shipments by out-of-state wineries, while permitting shipment by in-state wineries.[140]
Since the current state of ADSL law presents a shroud of uncertainty, the pending Supreme Court decision will help to allay fears of future unpredictable appellate decisions. This Section argues that two issues will likely affect the Court's outcome. First, while the Court appears ready to resolve the matter using a textual approach, the vague language of the Twenty-First Amendment will likely yield to other constitutional provisions. Second, three-tiered distribution systems are obsolete for controlling wine distribution. The Court should recognize them as an unsavory alternative to direct shipping.
Hillside Suggests That the Current Supreme Court May Abandon the Modern Accommodation approach
Hillside is the latest Supreme Court case indicating that the Court may abandon the Bacchus Modern Accommodation approach. In Hillside, the Court emphasized a textual approach to resolving cases that implicate the dormant Commerce Clause.[141] The Hillside court indicated that it would only uphold discriminatory regulations when explicitly authorized by Congress.[142] Thus, when faced with a case where the Twenty-First Amendment purportedly authorizes an ADSL, the Court seems more likely to follow Liquormart and reject the Modern Accommodation approach in favor of a Broad Standard approach that gives deference to the express text of the Twenty-First Amendment.[143]
Interestingly, a highly textual approach may lead the Court to a different result than that typically found under the Broad Standard framework. The well-known constitutional law scholar Professor Laurence Tribe has noted that the Twenty-First Amendment does not expressly grant any power to states.[144] Read literally, the amendment "prohibits the very conduct it was apparently meant to authorize the states to prohibit," and thereby only prohibits individuals' conduct.[145]
Such an interpretation, if adopted by literalist justices on the Supreme Court, might lead to the same result that would be reached under the Modern Accommodation approach. Because the Twenty-First Amendment does not expressly authorize states to enact discriminatory alcohol statutes, the Court would likely find it necessary to examine ADSLs in light of competing constitutional provisions.[146] Thus, while the whole Court may no longer approve of the Modern Accommodation approach, it may reach the same result, with some justices taking a highly textual approach, and others continuing to harmonize under the Bacchus standard.
Not only would such a holding bring together the various ideologies of the current Court, but it would also be consistent with the text of the Twenty-First Amendment, the reasoning of recent appellate dormant Commerce Clause cases, and the holding of Bacchus. This interpretation would be more consonant with the Supreme Court's view that the Twenty-First Amendment does not exist independently of other federal interests and constitutional provisions.[147] The Court has recognized the interplay between the Twenty-First Amendment on one hand, and the dormant Commerce Clause,[148] First Amendment,[149] Fourteenth Amendment,[150] Sherman Act,[151] and Supremacy Clause on the other.[152] Those who suggest that the Court will adopt a textual approach to give states unfettered power in creating ADSLs fail to consider the larger body of case law that such an interpretation would undermine.[153]
Regardless of any Constitutional basis for overturning ADSLs, public policy and logic indicate that state three-tier distribution systems should not encumber out-of-state manufacturers. State distribution systems are not designed to regulate out-of-state shipping and are not undermined by such shipping.[154] In addition, the application of such distribution systems to out-of-state shippers is patently anticompetitive.[155]
The overall design of state distribution systems is not one that should logically apply to an out-of-state winery. Most states distribute alcohol through a three-tiered system.[156] Under such a system, state-licensed manufacturers sell to state-licensed wholesalers who, in turn, sell to state-licensed retailers, from which consumers make their purchases.[157] State ADSLs subject out-of-state manufacturers to the rules and controls of the distribution system.[158] These manufacturers, however, are not within the class that state legislatures seek to regulate under such a system, given their out-of-state citizenship.[159]
Further, state distribution systems are not undermined by out-of-state shipping. States adopted three-tier distribution systems primarily as a result of tied-house limitations, which states had earlier passed to prevent monopolies in manufacturing, distribution and retail of alcoholic beverages.[160] In part, states intended these systems to prevent manufacturers from exclusively selling their products at manufacturer-run retail shops.[161] The system also proved successful as the common alcohol product to be regulated, beer, had a short shelf-life and was not suitable for long-distance transportation. This underlying rationale does not apply to a direct-shipper, who sells directly to consumers rather than through a retail establishment. Out-of-state direct shippers, therefore, do not fall within the contemplated class of manufacturers that tied-house laws seek to regulate.
Finally, requiring out-of-state manufacturers to comply with in-state distribution systems is patently anticompetitive.[162] Wineries should not have to resort to transacting with state-licensed distributors and wholesalers who determine their products' market success.[163] In a free market, unencumbered by state balkanization of trade, a direct shipper would be able to conduct business with the customers they want, rather than with those that the states allocate. Such a system would result in more competition, and would make a positive contribution to consumer and social welfare.[164]
This article discussed the emergence of a body of law controlling alcohol use and states' rights. In resolving issues of state alcohol law, the Supreme Court initially created a Broad Standard approach. The Court later adopted a Modern Accommodation standard. As a result, the lower courts are currently unable to determine a proper method for analyzing the constitutionality of state ADSLs.[165] The appellate courts are split on whether direct shipping is legal. The Supreme Court has not yet spoken on the issue.
When it resolves the issue this term, the Court will likely find discriminatory ADSLs unconstitutional based upon dormant Commerce Clause and policy grounds. The Court is likely to take a highly textual approach, which will reveal inadequacies within the text of the Twenty-First Amendment, making it necessary to harmonize state ADSLs with the dormant Commerce Clause. The Court will also likely recognize that three-tiered systems are inadequate to handle direct shipment of wine. Additionally, for those in the wine industry, the trend in the appellate courts appears to foreshadow this result. ADSLs have been overturned in all but two appellate cases.[166] Wine lovers may be guardedly optimistic that, following Bacchus and Hillside, the Supreme Court will overturn restrictive shipping laws. But for now, they must proceed carefully. Shipping fragile wine bottles is a delicate business, especially when the law is unstable.
The court has consolidated three cases for consideration noting that question for consideration after consolidation is, "Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the Dormant Commerce Clause in light of Sec. 2 of the 21st Amendment?" See Heald v. Enger, 342 F.3d 517 (6th Cir. 2003), cert granted under Granholm v. Heald, 124 S. Ct. 2389,(U.S., 2004), cert. granted under Mich. Beer & Wine Wholesalers Ass'n v. Heald, 124 S. Ct. 2389(U.S. 2004); Swedenburg v. Kelly, 358 F.3d 223 (2nd Cir. 2004), cert. granted, 124 S. Ct. 2391, (U.S., 2004).
[4] See Staff of Federal Trade Comm'n, Possible Anticompetitive Barriers To E-Commerce: Wine 3 (2003) (noting that more than half of states prohibit or severely restrict direct shipping); id. at 7 (noting that roughly twenty-four states allow interstate direct shipping); see also Wine Institute, Direct Shipment Laws By State For Wineries, available at http://www.wineinstitute.org/shipwine/analysis/intro_analysis.htm (last modified Oct. 20, 2004). Cf. Brief for Appellees at 3-4, Swedenburg v. Kelley,(2d. Cir. 2003)(No. 02-9511(L)).
[6] See, e.g., Heald v. Engler, 342 F.3d 517 (6th Cir. 2003) (holding that implicit discrimination exists in ADSL which requires balancing test to determine if core concerns implicated, and querying whether legitimate means to effect state concerns exist); Dickerson v. Bailey, 336 F.3d 388 (5th Cir. 2003) (finding that ADSL facially discriminated and thus violated dormant Commerce Clause where state showed no core concern justification); Bolick v. Danielson, 330 F.3d 274 (4th Cir. 2003) (remanding earlier district court holding that ADSL violated Constitution in light of new state law); Beskind v. Easley, 325 F.3d 506 (4th Cir. 2003) (striking part of ADSL that discriminated in violation of Commerce Clause where not saved by Twenty-First Amendment); Bainbridge v. Turner, 311 F.3d 1104, 1115 (11th Cir. 2002) (finding that ADSL facially discriminated, but remanding for test on core concerns); see also Swedenburg v. Kelly, 358 F.3d 223 (2nd Cir. 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds); Bridenbaugh, 227 F.3d 848 at 851 (finding regulation constitutional).
[7] U.S. Const. amend. XXI, § 2 ("The transportation 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."); see, e.g., Dickerson, 336 F.3d at 406 (noting that plaintiffs believe discriminatory intent and effect of Texas' alcohol beverage statutes should not receive safe harbor under Twenty-First Amendment). But cf. Heald, 342 F.3d at 519-20 (noting defendants' argument that Twenty-First Amendment saved Michigan's alcohol beverage statute).
[8] See, e.g., Dickerson, 336 F.3d at 392(indicating that plaintiffs challenged Texas's alcohol distribution system for violating Commerce Clause and discriminating against out-of-state wineries).
[9] See, e.g. Heald, 342 F.3d at 519-20 (noting defendants' argument that Twenty-First Amendment saved Michigan's alcohol beverage statute); Dickerson, 336 F.3d at 394 (noting defendants' argument that powers granted under Twenty-First Amendment authorized ADSL); see also Wine & Spirits Wholesalers of America, Cyber Booze Taboo: New Survey Confirms Majority of Americans Oppose Internet Alcohol Sales, Pattern of Shadow Alcohol Sales Show Minors Can Buy Beer (Oct. 22, 2003) (news release), available at http://www.wswa.org/public/media/survey/summary.html (last accessed Feb. 1, 2004) (quoting Wine and Spirits Wholesalers of America CEO Juanita Duggan, who argues that existing system is effective and authoritative).
[10] See Swedenburg, 358 F.3d 223, 246(2nd Cir. 2004)(holding that New York's ADSL system was properly within scope of Twenty-First Amendment and did not violate dormant Commerce Clause or Privileges and Immunities Clause, although the portion of ADSL restricting advertising violated First Amendment); Bridenbaugh, 227 F.3d. at 853-54 (finding that ADSL was constitutional because, after Twenty-First Amendment, dormant Commerce Clause does not immunize all interstate shipments from state regulation).
[11] See Heald, 342 F.3d at 524 (invoking Justice Scalia's concurring opinion in Healy v. Beer Inst., 491 U.S. 324, 344 (1989), to conclude that ADSL was invalid because it facially discriminated against interstate commerce); Dickerson, 336 F.3d at 410 (holding that Texas's restrictions on direct sales unconstitutionally discriminated in favor of Texas wineries, and that Commerce Clause prohibits such geographic discrimination); Beskind v. Easley, 325 F.3d 506 (4th Cir. 2003) (holding that discriminatory ADSL violated Commerce Clause); see also Bridenbaugh, 227 F.3d at 853 (noting that recent Supreme Court cases of Brown-Forman Distillers Corp v. New York State Liquor Authority, 476 U.S. 573, 579 (1986), and Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 267 (1984), do not authorize discrimination against out-of-state sellers). Cf. Bainbridge v. Turner, 311 F.3d 1104, 1115 (11th Cir. 2002) (finding that ADSL facially discriminated, but remanding for test on core concerns). See generally Matthew J. Patterson, Note, A Brewing Debate: Alcohol Direct Shipment Laws and the Twenty-First Amendment, 2002 U. Ill. L. Rev 761, 763 (2002) (noting that commentators generally agree that ADSLs would be found unconstitutional under Commerce Clause analysis).
[12] The Wine Industry has retained high-profile counsel. See The Wine Wars, N.Y. Times, Aug. 24, 2003, § 3, at 4 (noting that scholars, litigators and lobbyists retained include Judge Kenneth Starr, former Whitewater special prosecutor, now working with lobbying group Coalition for Free Trade); see also cases cited supra note 9.
[13] Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003) (holding that California milk legislation is not exempt from Commerce Clause analysis, and clarifying that discriminatory effects of such legislation supported plaintiffs' disparate treatment claims).
[14] Id. at 61-62(noting that plaintiffs questioned constitutionality of state statute under Commerce Clause and Privileges and Immunities Clause).
[15] Id. at 66 (recognizing that Congress has power to authorize discriminatory state regulations, but must clearly express such intent).
[16] Prior to the Twenty-First Amendment the Supreme Court heard an early direct shipment case. In Rhodes v. Iowa, the Court found a shipping regulation unconstitutional based on Commerce Clause principles. See Rhodes, 170 U.S., 412, 424 (1898)(determining that Iowa law forbidding delivery of goods imposed an unconstitutional burden on interstate commerce in violation of Congress's exclusive power).
[17] U.S. Const. amend. XVIII (creating prohibition); U.S. Const. amend. XXI. (repealing prohibition).
[19] Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274 (1984) (recognizing that despite broad language in early Supreme Court opinions following Twenty-First Amendment ratification, more recent Supreme Court decisions have recognized obscurity in legislative history of Section Two).
[20] See South Dakota v. Dole, 483 U.S. 203, 206 (1987) (agreeing with Bacchus's observation that Twenty-First Amendment's meaning is obscure and noting current inability to precisely define its bounds).
[21] See U.S. Const. amend. XVIII; see also Duncan Baird Douglas, Constitutional Crossroads: Reconciling the Twenty-First Amendment and the Commerce Clause to Evaluate State Regulation of Interstate Commerce in Alcoholic Beverages, 49 Duke L.J. 1619, 1662 n.144 (2000) (noting that ratification of Eighteenth Amendment made debate over Webb-Kenyon Act moot); Stephen Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 499 (1997) (indicating that Eighteenth Amendment closed book on state regulations).
[22] See Brannon P. Denning, Smokey and the Bandit in Cyberspace: the Dormant Commerce Clause, the Twenty-First Amendment, and State Regulation of Internet Alcohol Sales, 19 Const. Commentary 297, 301 (2002).
[23] Id.; see also Stephanie Ahrens Waller, Comment, Bacchus Rules; Recent Court Decisions on the Direct Shipment of Wine, 40 Hous. L. Rev. 1111, 1116-17 (2003) (noting that large percentage of electorate voted for Twenty-First Amendment because they objected to authoritative federal government).
[24] U.S. Const. amend. XVIII, repealed by U.S. Const. Amend. XXI; see also Heald v. Engler, 342 F.3d 517, 522 (6th Cir. 2003) (noting that Twenty-First Amendment repealed Eighteenth Amendment, thereby ending prohibition).
[26] U.S. Const. amend. XXI, § 2. See discussion infra Part III.A for a more detailed explanation on the ostensible powers the Twenty-First Amendment afforded states. See generally Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 Const. Commentary 217 (1995) (arguing that faults with literal interpretation of Twenty-First Amendment obscure its actual meaning).
[27] See 49 Stat. 877 (1935) (current version at 27 U.S.C. § 122 (2002)). This provision reads in part:
The shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State . . . into any other State . . . [which] is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited.
27 U.S.C. § 122 (2002). The Liquor Law Repeal and Enforcement Act was a reenactment of an earlier version of the Webb-Kenyon Act. See Webb-Keynon Act of 1913, 37 Stat. 699 (1913). Several courts have viewed the earlier Webb-Keynon Act as the statutory counterpart to the Twenty-First Amendment because it attempts to restrict shipment or transportation of alcohol into a state, territory, or district. See Bainbridge v. Turner, 311 F.3d 1104, 1110-11 (11th Cir. 2002) (indicating that Web-Kenyon Act must be read congruently with Twenty-First Amendment); Mount Hood Beverage Co. v. Constellation Brands, Inc., 63 P.3d 779, 789-790 (Wash. 2003) (noting that Webb-Kenyon Act preceded Twenty-First Amendment and was its statutory counterpart).
[28] See Bainbridge, 311 F.3d at 1110-11 (noting Florida's argument that Webb-Kenyon Act constituted reconveyance of regulatory authority to states, with corresponding immunization from Commerce Clause scrutiny); Mount Hood, 63 P.3d at 789 (noting distributors' argument that Congress's reenactment of Webb-Kenyon Act serves as conveyance of state alcohol regulatory power). See discussion infra Part I.A.2 for a more detailed explanation of the dormant Commerce Clause.
[29] See Bainbridge, 311 F.3d at 1110-11 (noting that Webb-Kenyon Act is not independent of Twenty-First Amendment); Mount Hood, 63 P.3d at 789-90 (citing Bainbridge, 311 F.3d at 1110-11).
[32] Id. For an explanation of the powers granted by the Act, see Staff of Federal Trade Comm'n, possible Anticompetitive Barriers To E-Commerce: Wine 10 (2003) (noting that state attorneys general have power to sue).
[33] See 27 U.S.C. § 122a(e)(2) (2002) (stating that rules of construction should limit interpretation to jurisdiction only and that courts shall not construe Act to grant states any additional powers).
[35] Id. (detailing several exceptions that permit winery to ship where otherwise restricted, if: purchaser was physically present at winery, purchaser is of legal drinking age, shipping container receives adult signature upon delivery, shipment is for personal use only, and purchaser could have carried shipment lawfully into location where shipment was sent).
[37] See Mike Steinberger, Wine's World: Grape Contenders, SLATE MAGAZINE, at (Feb. 6, 2004) ( "After 9/11, the FAA tightened restrictions on carry-on luggage, making it extremely difficult to bring wine into the cabin.").
[38] 27 U.S.C. § 124 (2002). As a response to the recent restrictions placed on airline passengers as a prophylaxis to terrorism, the FAA has limited what passengers may bring on an aircraft. Id. Under these limits, passengers may not currently bring bottled alcohol onboard. Id.
[39] See Eric L. Martin, Note, A Toast to the Dignity of States: What Eleventh Amendment Jurisprudence Portends for Direct Shipment of Wine, 31 Hofstra L. Rev. 1303, 1321 (2003) (noting that winemakers view provision as important because it indicates that Congress may acknowledge legitimacy of direct shipments).
[40] The Commerce Clause, as written, designates that Congress has the power to "regulate Commerce . . . among the several states." U.S. Const., art. I, § 8, cl. 3. Where there is no federal law on point, courts generally infer federal retention of Commerce Clause powers. See cases cited infra note 42; see also Erwin Chemerinsky, Constitutional Law § 3.B at 317 (2001) (noting that no constitutional provision expressly declares that states may not burden commerce, but that Supreme Court has inferred this from grant of power to Congress); John Faust, Note, State Power to Regulate Alcohol Under the Twenty-First Amendment: The Constitutional Implications of the Twenty-First Amendment Enforcement Act, 41 B.C. L. Rev. 659, 660-61 (2000) (noting that since Cooley v. Board of Port Wardens, 53 U.S. (12 How.) 299, 319-20 (1851), Supreme Court has recognized existence of dormant Commerce Clause); see also Emily V. Griffen, Comment, "Relations Stop Nowhere": ERISA Preemption of San Francisco's Domestic Partner Ordinance, 89 Calif L. rev 459, n.107 (2001) (recognizing that dormant Commerce Clause doctrine provides grant of power to Congress).
[41] See sources cited supra note 36; see also Gordon Eng, Note, Old Whine in a New Battle: Pragmatic Approaches to Balancing the Twenty-First Amendment, the Dormant Commerce Clause, and the Direct Shipping of Wine, 30 Fordham Urb. L.J. 1849, 1850 (2003) (recognizing uncertainty on boundaries of Commerce Clause and noting that constitutional law professors John Nowak and Ronald Rotunda observed this as basis for dormant Commerce Clause).
[42] See, e.g., West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)(holding that state law favoring in-state dairy farmers is unconstitutional because dormant aspect of Commerce Clause limits state power to discriminate against interstate commerce); Dennis v. Higgins, 498 U.S. 439, 447 (1991)(noting that dormant Commerce Clause can restrict state regulation of interstate commerce); see also United States v. IBM, 517 U.S. 843, 852 (1996)(noting that Supreme Court has long recognized negative implications of the Commerce Clause).
[43] See discussion infra Part II for a more detailed look at how the appellate courts have recently analyzed the issue. See Elizabeth D. Lauzon, Annotation, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regulation of Intoxicating Liquors, 116 A.L.R. 5th 149, *2a (2004) (recognizing that courts follow analysis which either interprets Twenty-First Amendment as giving broad rights to states, or that harmonizes Twenty-First Amendment with Commerce Clause).
[45] See Duckworth v. Arkansas, 314 U.S. 390 (1941); Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939); State Bd. of Equalization v. Young's Mkt. Co., 299 U.S. 59 (1936); Lauzon, supra note 40, at *2a. See discussion infra Part I.B for a more detailed look at Supreme Court cases recognizing the broad standard rule. See discussion infra Part II.A for a more detailed look at the federal appellate courts that recently adopted this approach.
[46] See Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Lauzon, supra note 43, at *2a. See discussion infra Part I.B for a more detailed look at Supreme Court cases recognizing the modern accommodation rule. See discussion infra Part II.A for a more detailed look at the federal appellate courts that recently adopted this approach.
[47] See Brown-Forman, 476 U.S. at 579 (stating that two-tier approach is needed for analyzing Commerce Clause application to Twenty-First Amendment litigation); Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337, at *15-16 (2d Cir. Feb. 12, 2004) (recognizing that four previous circuit courts utilized two-step analytical framework); see also Eng, supra note 41, at 1864 (stating that modern application of dormant Commerce Clause in Twenty-First Amendment litigation is two-tier analysis).
[48] See, e.g., Brown-Forman, 476 U.S. at 579 (identifying two-part approach); Dale Bish, Note, The Unfounded Fears of Environmental Balkanization: The Ninth Circuit's Dangerous Expansion of the Commerce Clause, 47 U.C. Davis L. Rev 605, 617 (2003) (detailing approach to commerce clause analysis).
[51] See, e.g., Brown-Forman, 476 U.S. at 579 (noting that balancing test applies to statutes passing out of earlier analysis).
[52] See sources cited supra note 46; see, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
[54] See Bacchus Imports, Ltd. V. Dias, 468 U.S. 263, 275 (1984) (noting that courts must analyze statute to see if Twenty-First Amendment can save it); Lauzon, supra note 40, at *2a (noting that Modern Accommodation Approach requires Twenty-First Amendment analysis).
[56] See, e.g., Bolick v. Roberts, 199 F. Supp. 2d 397, 443 (D. Va. 2001) (noting that, following Bacchus, Supreme Court requires examination of legitimate state interest under core concerns of Twenty-First Amendment); see also Eng, supra note 38, at 1898 (discussing core concerns).
[57] For an analysis on the Supreme Court's interpretation of core concerns, see Timothy Schnabel, A Circuit-Splitting Headache: The Hangover of the Supreme Court's Twenty-First Amendment Jurisprudence, 21 Yale L. & Pol'y Rev. 547, 549-52 (2003) (noting that in North Dakota v. United States, 495 U.S. 423 (1990), Supreme Court recognized legitimate state concerns of temperance, ensuring orderly market conditions, and raising revenue, but that core concerns remain undefined).
[58] See Patterson, supra note 9, at 783-84 (noting that Supreme Court has vaguely detailed that Twenty-First Amendment limits effect of dormant Commerce Clause on state regulatory power over delivery or use of intoxicating beverages); Lauzon, supra note 43, at *2a (noting that Supreme Court has never explicitly overruled Broad Standard Rule). But see Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337, at *23 (2d Cir. Feb. 12, 2004) (noting that Supreme Court jurisprudence has conclusively adopted Modern Accommodation approach); id. at *31 n.10 (noting that no Supreme Court precedent requires use of Modern Accommodation approach in like cases).
[59] See generally Lauzon, supra note 43, at *4 (identifying that thread of cases since Bacchus follows Modern Accommodation approach); see, e.g., Brown-Forman, 476 U.S. 573; Healy v. Beer Institute, Inc., 491 U.S. 324 (1989). But see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (noting that Twenty-First Amendment grants states power to control commerce in alcoholic beverages).
[60] See, e.g., id.; Bacchus Imports, Ltd. V. Dias, 468 U.S. 263 (1984); State Bd. Of Equalization v. Young's Mkt. Co., 299 U.S. 59 (1936).
[62] Patterson, supra note 11, at 772 (noting that original view identified unconditional grant of State power); see also Bacchus, 468 U.S. at 274 (noting that language in earlier opinions indicated that section two gave States broad power to establish terms under which imported liquor might compete with domestic liquor); see, e.g., Young's Market, 299 U.S. at 59 (holding that states need not meet strictures of Commerce Clause when regulating sales and importation of liquor within state).
[64] Id. (concluding that fee on importation of beer would have been unconstitutional prior to Twenty-First Amendment as it directly burdens interstate commerce).
[65] See id. at 62-63 (noting that state could constitutionally adopt lesser degree of regulation than total prohibition, including state monopoly on manufacture and sale of beer, prohibitions on competing importations, or imposts on importation).
[66] See, e.g., Hostetter v. Idlewild Bon Voyage Liquour Corp., 377 U.S. 324, 330 (1964); United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 299 (1945); Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939).
[67] See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 557-58 (1991) (O'Connor, J., dissenting) (noting that Bacchus created new rule that Commerce Clause places restrictions on state power under Section Two of Twenty-First Amendment and thus overruled authoritative Young's Market line of cases); id. at 558 (Stevens, J., dissenting) (explaining novelty of Bacchus reasoning).
[69] Bacchus, 468 U.S. at 272-73 (noting that Hawaiian legislation constituted economic protectionism and had purpose and effect of discriminating in favor of local products); see also West Lynn Creamery v. Healy, 512 U.S. 186, 205 (1994) (recognizing that Bacchus indicated that preservation of local industry by protection against interstate competition is hallmark of economic protectionism prohibited by Commerce Clause).
[71] Id. at 275 (noting that Commerce Clause applies to state regulation of alcoholic beverages despite Twenty-First Amendment). See generally Patterson, supra note 11, at 773 (noting that, prior to Bacchus, courts hinted that state alcohol regulations were not completely exempt from Commerce Clause restrictions, but that Bacchus decision was novel).
[72] See Bacchus, 468 U.S. at 273 (noting that statute with purpose and effect of discriminating in favor of local products is invalid).
[73] See id. at 275 (noting that Court must identify whether principles underlying Twenty-First Amendment sufficiently outweigh Commerce Clause principles which might otherwise be offended).
[75] See Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986) (identifying two-tier approach).
[76] See, e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 557-58 (1991) (O'Connor, J., dissenting) (arguing that Bacchus approach is flawed); Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337, *15-16 (2d Cir. Feb. 12, 2004) (recognizing that Bacchus opinion was anomalous given procedural irregularities).
[77] See Beam, 501 U.S. at 557-58 (O'Connor, J., dissenting) (arguing that cases cited by Bacchus Court in support of its new ruling provided no notice of impending change, because all held that Twenty-First Amendment did not give states authority to override congressional legislation and dealt essentially with Supremacy Clause).
[78] Id. (arguing that cases were irrelevant because they involved relationship between Twenty-First Amendment and Congress's authority to legislate under (positive) Commerce Clause, while Bacchus and Young's Market line of cases involved authority to regulate liquor unconstrained by dormant Commerce Clause).
[79] See Bacchus, 468 U.S. at 278-87 (Stevens, J., Rehnquist, C. J., & O'Connor, J. dissenting) (noting that majority places too little weight on Twenty-First Amendment); id. at 282 (Stevens, J., dissenting) (noting that Hawaii had power under Twenty-First Amendment to prohibit alcohol use).
[80] North Dakota v. United States, 495 U.S. 423, 432 (1990) (holding North Dakota's labeling requirements constitutional because they fall within core of state's power under Twenty-First Amendment). But see id. at 444 (Scalia, J., concurring) (noting that state may not enact taxes or regulations that discriminate); Heald v. Engler, 342 F.3d 517, 527 (6th Cir. 2003) (noting that North Dakota dealt with Supremacy Clause, and therefore has little value in case requiring Commerce Clause analysis).
[86] See Brown-Forman, 476 U.S. at 579 (noting that Court almost always strikes down statutes which directly discriminate or have discriminatory effect); see also Healy v. Beer Inst., 491 U.S. 324, 337 n.14 (1989) (agreeing with Brown-Forman analysis).
[87] Brown-Forman, 476 U.S. at 579 (noting that courts must examine statute with only indirect effects on interstate commerce to see whether state's interest is legitimate and whether burden on interstate commerce clearly exceeds local benefits); see also Eng, supra note 41, at 1864 (describing second part of analysis).
[89] Id.; see also Eng, supra note 41, at 1864 (stating that criteria for analyzing statute follows approach created in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
[90] 517 U.S. 484 (1996). See generally, Lauzon, supra note 41, at *5 (noting that Court in Liquormart indicated presumption of validity for state statute regulating alcohol due to Twenty-First Amendment rights).
[93] Id. at 514-15 (noting that Twenty-First Amendment gave states power to prohibit commerce in, or use of, alcoholic beverages).
[98] Id. at 61-62. (noting that statute could be challenged on Commerce Clause and Privileges and Immunities Clause grounds).
[103] See id. (noting that state regulation could be lawfully discriminatory where Congress clearly indicates such an intent); see also Maine v. Taylor, 477 U.S. 131, 138-39 (1986) (noting that states can overcome free trade guarantee of Commerce Clause only when congressional direction to do so is unmistakably clear).
[107] See cases cited supra note 6. As of October 7, 2003, Parker v. Morrison was filed in the district court for Arizona bringing the total number of federal ADSL cases to eight. E.g., Coalition for Free Trade, Litigation Summaries, available at http://www.coalitionforfreetrade.org/litigation (last accessed Mar. 3, 2004) (listing recent ADSL cases filed).
[108] See Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337 (2d Cir. Feb. 12, 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds); Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, 851 (7th Cir. 2000) (finding ADSL constitutional).
[110] See Swedenburg, 2004 U.S. App. LEXIS 2337 at *45 (holding state ADSL legitimate under dormant Commerce Clause and Privileges and Immunities clause because of Twenty-First Amendment authorization, but striking down section of provision which violated First Amendment free-speech rights); Bridenbaugh, 227 F.3d at 851 (holding ADSL constitutional under dormant Commerce Clause because of Twenty-First Amendment authorization).
[111] Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000), cert. denied, 532 U.S. 1002 (2001).
[115] Id. at 853 (noting that Indiana required that all liquor pass through its three-tiered system and be subject to taxation, and thus did not functionally discriminate against out-of-state shippers); see also Dickenson v. Bailey 336 F.3d 388, 401 (5th Cir. 2003) (noting that dispositive fact in Bridenbaugh was Indiana's equal application of three-tier system to all alcoholic beverages, regardless of origin).
[116] See Bridenbaugh, 227 F.3d at 853-55; see also Heald v. Engler, 342 F.3d 517, 526-27 (6th Cir. 2003) (noting that Bridenbaugh has been criticized by several federal courts for its failure to engage in dormant Commerce Clause analysis).
[117] Bridenbaugh, 227 F.3d at 849 (noting that case "pits the Twenty-First Amendment, which appears in the Constitution, against the dormant Commerce Clause, which does not").
[118] Id. at 849 (noting that history of Section Two of Twenty-First Amendment confirms ADSL validity).
[120] Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337 (2d Cir. Feb. 12, 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds, but not under First Amendment).
[122] Id. at *11-15 (detailing decision of district court); see also Bridenbaugh, 227 F.3d at 853 (noting that district court found ADSL unconstitutional and state officials appealed).
[123] Swedenburg, U.S. App. LEXIS 2337 at *40 (holding that New York's ADSL scheme was non-discriminatory); see also Bridenbaugh, 227 F.3d at 849 (noting that Indiana's ADSL system did not functionally discriminate).
[124] Swedenburg, U.S. App. LEXIS 2337 at *18 (recognizing that protective doctrine of dormant Commerce Clause should not subordinate plain text of Twenty-First Amendment); id. at *45 (noting that Twenty-First Amendment does not allow ADSLs which prohibit free speech in violation of First Amendment).
[125] See cases cited supra note 11; see also Swedenburg, 2004 U.S. App. LEXIS 2337 at *45 (holding that New York's ADSL did not violate dormant Commerce Clause or Privileges and Immunities Clause, although portion of ADSL violated First Amendment).
[126] See cases cited supra note 11; see also Swedenburg, U.S. App. LEXIS 2337 at *45 (holding that part of ADSL violated First Amendment).
[127] Dickerson v. Bailey, 336 F.3d 388 (5th Cir. 2003) (finding discriminatory ADSLs unconstitutional and striking them completely). The Michigan state attorney general recently submitted a petition for certiorari to the United States Supreme Court in Heald v. Engler, 342 F.3d 517 (6th Cir. 2003). The Sixth Circuit en banc had sustained the original finding. See Heald v. Engler, 2003 U.S. App. LEXIS 23001 (6th Cir. Nov. 4, 2003). Therefore, the Heald case is still active, and Dickerson presents the best final decision finding an ADSL wholly unconstitutional.
[128] See Dickerson v. Bailey, 336 F.3d 388, 410 (5th Cir. 2003) (noting that, because ADSL denied Texas consumers access to out-of-state wine and out-of-state wineries access to Texas citizens, Commerce Clause prohibited resulting geographic discrimination); Beskind v. Easley, 325 F.3d 506, 517 (4th Cir. 2003) (finding that preferential and facially discriminatory nature of ADSL violated Commerce Clause).
[129] See Dickerson, 336 F.3d at 409 (recognizing that legal issue before court was Texas's discriminatory treatment of out-of-state wineries rather than legitimacy of Texas's three-tier system); Beskind, 325 F.3d 506 at 516 (noting that plaintiffs did not challenge North Carolina's three-tiered system perhaps because they recognized its constitutionality under Twenty-First Amendment).
[130] See Dickerson, 336 F.3d at 399 (noting that Texas's legislature clearly identified its discriminatory purpose and intent by denying out-of-state wineries exemptions to three-tier system that it accorded to in-state wineries); id. (noting that Texas's statement of legislative intent candidly declared that purpose of exemptions was to assist Texas wine industry).
[133] Id. at 519 (noting that plaintiffs raise constitutional challenge to Michigan's alcohol distribution system).
[134] Id. at 522 (noting that central question of case involved interaction between Twenty-First Amendment and Commerce Clause).
[136] Compare cases cited supra note 60 (indicating that Bridenbaugh and Swedenburg used broad standard approach) with cases cited supra note 126 (indicating that Beskin and Dickerson utilized a modern accommodation analysis).
[140] See Question presented for review, id.
Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the Twenty-first Amendment?
[141] See Hillside Dairy, Inc. v. Lyons, 539 U.S. 59, 67 (2003) (noting that Court will only allow discriminatory regulations when Congress has explicitly authorized them.).
[143] As Hillside appears to require a textual analysis, and Liquormart also embraces this approach, a future case would likely follow this recent precedent. See discussion supra note 88 (noting that Liquormart indicates that Supreme Court may revert to Broad Standard approach).
[144] See Tribe, supra note 26, at 219 (noting that Twenty-First Amendment fails to specify any state rights, and that such rights are generally held as following some logical necessity).
[146] Assuming that Professor Tribe is correct, then, using Hillside's rationale, the Court would logically not presume the ADSL valid, and would find it subject to disparate treatment claims. See Hillside, 539 U.S. at 67.
[147] See The Wine Wars, supra note 10, at 15 (noting that in spite of Twenty-First Amendment, courts must consider state liquor regulation in light of other federal interests and constitutional mandates); see also Martin, supra note 39 (recognizing that United States Supreme Court has indicated in recent cases that Twenty-First Amendment does not give states unfettered power to regulate alcoholic beverages within their boundaries).
[148] See Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 584 (1986) (noting that Twenty-First Amendment did not entirely remove state regulation of alcohol from reach of dormant Commerce Clause).
[153] See, e.g., Denning, supra note 22, at 300-01 (arguing that recent district court decisions limiting Twenty-First Amendment power were decided erroneously and expressing view that Supreme Court decisions which embraced literal interpretation of Amendment giving states broader powers were correct). But see cases cited supra notes 148-53 (recognizing that federal interests may outweigh Twenty-First Amendment concerns); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 273 (1984) (noting strong federal interest in preventing economic balkanization).
[154] See generally Douglas, supra note 21, at 1621-24 (discussing genesis of distribution systems).
[155] See id. (recognizing that ADSL prohibits competition and excludes manufacturers from selling in-state).
[156] See id. (stating that many states created three-tier system after Twenty-First Amendment); see also Denning, supra note 22, at n.2. (indicating that most states have some form of three-tier shipping system).
[157] Heald v. Engler, 342 F.3d 517, 520 (6th Cir. 2003) (citing Vijay Shankar, Alcohol Direct Shipment Laws, 85 Va. L. Rev. 353, 355 (1999)).
[158] See generally Douglas, supra note 21, at 1622 (stating that ADSL subjects out-of-state winery manufacturer to three-tier system which legislators designed contemplating in-state manufacturers).
[160] See Susan Lord Martin, Wine Wars - Direct Shipment of Wine: the Twenty-First Amendment, the Commerce Clause, and Consumer's Rights, 38 Am. Bus. L.J. 1, 27-28 (2000) (noting that three-tier system was envisioned to thwart gangster domination of liquor market through vertical and horizontal integration).
[162] See generally Douglas, supra note 21, at 1622-23 (recognizing that ADSL prohibits competition and excludes manufacturers from selling in-state).
[163] See Wine Institute, Wine Institute Statement "E-Commerce: The Case of Online Wine Sales and Direct Shipment", available at http://www.wineinstitute.org/communications/statistics/dirship10.30.03.htm (last modified Oct. 29, 2003) (indicating that basis for direct shipping bans is protection of in-state businesses and wholesaler system).
[164] See Amicus Brief for Heald v. Engler, filed by professor Stuart Banner at UCLA School of Law, p. 2-3.
[166] See Heald, 342 F.3d at 524; Dickerson v. Bailey, 336 F.3d 388 (5th Cir. 2003); Bolick v. Danielson, 330 F.3d 274 (4th Cir. 2003); Beskind v. Easley, 325 F.3d 506 (4th Cir. 2003); Bainbridge v. Turner, 311 F.3d 1104, 1115 (11th Cir. 2002). But see Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337 (2d Cir. Feb. 12, 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds); Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, 851 (7th Cir. 2000)(finding ADSL constitutional).
Citation
5 U.C. Davis Bus. L.J. 1 (2004)
Copyright
Copr. © L. Red Gobuty, 2005. All Rights Reserved.
The Twenty-First Amendment and State Discriminatory Wine Import Policies
Vol. 5
January 2005
Page
2. The Dormant Commerce Clause
B. United States Supreme Court Case Law
1. State Board of Equalization v. Young's Market Co. 18
2. Bacchus Imports, Ltd. v. Dias
3. Brown-Forman Distillers Co. v. New York State Liquor Auth.
4. 44 Liquormart, Inc. v. Rhode Island
5. Hillside Dairy Inc. v. Lyons
A. Decisions Finding an ADSL Constitutional
B. Decisions Finding an ADSL Unconstitutional
A. Hillside Suggests That the Current Supreme Court May Abandon the Modern Accommodation approach
B. Out-Of-State Winemakers Should Not Be Subject To Intrastate Three-Tier Distribution Systems
Introduction
Section two of the Twenty-First Amendment "empowers Indiana to control alcohol in ways that it cannot control cheese."[1] When Judge Frank Easterbrook penned these words, a reader might have thought that the issue turned on the fungible differences between food and drink. Yet, the present cause of concern for oenophiles is significantly more complex; perhaps even more so than the wine they drink. During this term, the United States Supreme Court will hear arguments on a matter that will have broad economic impact for winemakers and vinolent consumers.[2] The Court is set to determine whether States can pass laws restricting interstate shipment of out-of-state wine.[3]
Roughly twenty-six states currently subject wine aficionados to regulatory prohibitions on most direct interstate shipments of wine.[4] These states have non-uniform laws that, in varying degrees, restrict free enterprise.[5] Adversely affected parties have responded by attacking the constitutionality of state alcohol direct shipment laws (ADSLs) that prohibit direct wine shipments.[6] They assert that while the Twenty-First Amendment repealed prohibition, it did so without giving states the unfettered right to pass such discriminatory alcohol regulations.[7]
In response to these laws, the wine industry has argued that ADSLs violate dormant Commerce Clause principles, because they create a regulatory scheme that discriminates in favor of local sellers.[8] Wholesalers, industry groups, and several states respond that the plain meaning of the Twenty-First Amendment creates an exemption from such analysis.[9]
Courts have responded to these arguments without reaching a clear consensus. Two federal circuit courts have evaluated the constitutional imbroglio that ADSLs present and have upheld bans on direct alcohol shipments.[10] Other circuit courts have disallowed ADSLs, holding that they discriminatorily control alcohol purchases.[11] With the help of some preeminent legal minds, the current conflict has achieved some legal notoriety.[12]
Nevertheless, the recent United States Supreme Court decision in Hillside Dairy Inc. v. Lyons may further the oenophile's cause. In Hillside, the Court held that the dormant Commerce Clause applied to analogous discriminatory California milk laws.[13] The Hillside Court contemplated issues strikingly similar to the ADSL questions that have confronted the lower federal courts.[14] Hillside is noteworthy because the Court indicated that it recognizes a presumption of invalidity for discriminatory state statutes.[15] While the Supreme Court has not decided an ADSL case since the Twenty-First Amendment's ratification, the reasoning in Hillside provides insight on how the Court may ultimately decide the matter. [16]
This Comment discusses the implications of Hillside and argues that ADSLs are an egregious violation of constitutional rights. According to the dormant Commerce Clause jurisprudence, a state may not enact ADSLs that discriminatorily abridge a wine-shipper's right to pursue a lawful sale. Part I discusses the Twenty-First Amendment and the dormant Commerce Clause. In addition, Part I presents an overview of several Supreme Court decisions necessary for an understanding of Twenty-First Amendment jurisprudence. Part I then discusses the recent Hillsidedecision. Part II introduces the current circuit split in ADSL cases by examining four representative cases. Part III then provides an analysis of the current circuit split and argues that ADSLs are unconstitutional under the dormant Commerce Clause. In addition, Part III presents an additional basis for finding ADSLs unconstitutional; one that underscores the importance of a more pragmatic approach to resolving the issues.
Unusually, alcohol regulation falls under two constitutional amendments.[17] This unique arrangement fosters much of the complexity in direct shipping litigation. To help readers fully understand the status of current ADSL proceedings, Part A of this section discusses Twenty-First Amendment history. Part A also provides a short background on the dormant Commerce Clause. Part B then briefly summarizes several appurtenant Supreme Court decisions. Finally, Part B discusses the Supreme Court's recent decision in Hillside Dairy Inc. v. Lyons.
The Twenty-First Amendment, and its interaction with other constitutional provisions, fundamentally affects the way in which courts resolve the issues in ADSL litigation.[18] Yet, as the United States Supreme Court recently noted, the legislative history of the Twenty-First Amendment is obscure.[19] The Court has not precisely defined the Twenty-First Amendment's boundaries.[20] Therefore, a few words on the Twenty-First Amendment and the dormant Commerce Clause should help clarify the issues discussed in this Comment.
Prohibition, embodied in the Eighteenth Amendment, made previous congressionally-enacted alcohol legislation obsolete.[21] Yet, as a one-size-fits-all scheme (imposing prohibition on all states), prohibition failed to satisfactorily resolve the social and economic problems alcohol presented.[22] The public outcry over the Eighteenth Amendment created a new movement dedicated to ending the government's interdiction on alcohol use.[23] Thus, in 1933, Congress officially enacted the Twenty-First Amendment, thereby ending prohibition.[24] The text of the amendment reads as follows:
Sec. 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Sec. 2. 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.
Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. [25]
Ostensibly, the Twenty-First Amendment gives states a constitutional basis for regulating alcohol distribution by prohibiting the delivery of alcohol "in violation of the laws" of each state.[26] To provide statutory clarity to the text of the Amendment, Congress subsequently enacted the Liquor Law Repeal and Enforcement Act in 1935.[27] In recent cases, states have argued that the Act conveys powers to states superseding those implicitly granted to Congress under the dormant Commerce Clause.[28] Yet, several courts have noted that the Act does not reconvey power to the states, because Supreme Court's interpretation of the Twenty-First Amendment must be read in conjunction with the Act.[29] According to this view, the Twenty-First Amendment only partially immunizes states from dormant Commerce Clause concerns, and the Act may not be read to preclude a Commerce Clause analysis.[30]
Two additional congressional acts are important to an understating of current ADSL litigation. First, in 2000, Congress passed the Twenty-First Amendment Enforcement Act.[31] This Act grants state attorneys general the power to sue in federal court for injunctive relief against out-of-state violators of state alcohol regulation.[32] The Act does not resolve the issues regarding the constitutional legitimacy of ADSLs, because Congress expressly limited its construction to jurisdictional issues.[33]
Second, in 2002 Congress enacted the Department of Justice Appropriations Authorization Act, which contains a provision authorizing limited direct shipping of wine in certain circumstances.[34] This provision grants exceptions for winery visitors who wish to have wine shipped to their homes, where ADSLs would otherwise prevent such shipments.[35] Nevertheless, the statute applies only during a period where the Federal Aviation Administration has passenger safety restrictions, which ban travelers from transporting wine onboard commercial aircraft.[36] While the Act currently grants exceptions for some travelers[37], it does not decisively resolve relevant ADSL issues.[38] The Act may indicate that Congress has embraced direct shipping, albeit temporarily.[39] On the other hand, Congress may be reserving its power to weigh in on the issue at a later date.
In addition to the Twenty-First Amendment, a short explanation of the dormant Commerce Clause will help the reader to better understand current ADSL litigation. Traditionally, courts construe the dormant Commerce Clause as an implied restriction prohibiting states from enacting discriminatory or unreasonably burdensome legislation affecting interstate commerce.[40] Thus, a state law implicates the dormant Commerce Clause when it affects interstate commerce in an area that Congress has not chosen to regulate.[41] This "nontextual negative command" or "dormant" aspect of the Clause may thus preempt state regulation of interstate commerce.[42]
Courts' approaches to dormant Commerce Clause analysis in ADSL litigation depend on how they view its interplay with the text of the Twenty-First Amendment.[43] Courts have generally taken two analytical approaches: a "broad standard rule" or a "modern accommodation standard rule."[44] The earliest Supreme Court decisions adopted the Broad Standard Rule, viewing the Twenty-First Amendment as authorization for states to exert almost unfettered control over alcohol use.[45] More recent Supreme Court opinions adopt the Modern Accommodation Rule, emphasizing a need to harmonize the Twenty-First Amendment with the dormant Commerce Clause.[46]
The Modern Accommodation approach embodies a two-tiered balancing test under which a court must first evaluate the statute under the dormant Commerce Clause and then under the Twenty-First Amendment.[47] Under the first tier, a court evaluates how the state law affects interstate commerce to see if it unconstitutionally discriminates against out-of-state interests.[48] The court first considers whether the state law applies to residents and non-residents evenhandedly.[49] Where a statute discriminates either facially or by its effect on commerce, the courts will generally strike it down as a violation of the dormant Commerce Clause.[50]
Where the statute survives the initial part of the first tier analysis, the court then applies a balancing test.[51] The courts will generally uphold an evenhanded statute, provided its burden on commerce does not outweigh the law's local benefits.[52] The state must show that the law serves a legitimate local purpose that could not be achieved in a less discriminatory manner.[53] The court will hold the statute invalid unless it survives this analysis.[54]
In the second tier, the court must then determine if the Twenty-First Amendment can "save" the law from invalidation.[55] The court must evaluate whether the statute sufficiently implicates the Amendment's "core concerns."[56] Yet, the Supreme Court has never precisely defined such core concerns.[57]
It is worth noting that the Supreme Court has never explicitly overruled the Broad Standard approach. Consequently, the Court has applied both the Broad Standard and Modern Accommodation Standard approaches in recent cases.[58] Yet, the Court's more recent trend has been to follow the Modern Accommodation approach.[59]
United States Supreme Court Case Law
The Supreme Court has decided several cases involving the interplay between the dormant Commerce Clause and the Twenty-First Amendment.[60] This section discusses several representative cases that set forth the Broad Standard and Modern Accommodation Rules. Additionally, a discussion of a recent Supreme Court case, Hillside Dairy v. Lyons, provides insight into how the Court may approach the Heald and Swedenburg cases to which it has recently granted certiorari.
The Supreme Court's Broad Standard approach began in 1936 with State Board of Equalization v. Young's Market Co.[61] Following the passage of the Twenty-First Amendment, the Supreme Court initially gave states an almost unfettered ability to regulate alcohol.[62] In writing for the majority, the prescient Justice Brandeis may have foreshadowed the current direct shipping debate in noting that the Twenty-First Amendment "forbid[s] all importations which do not comply with the conditions which it prescribes."[63]
In Young's Market, the Court upheld a California liquor statute that imposed a fee on beer imported into the state.[64] The Court recognized that the Twenty-First Amendment gives the state authority to broadly control its alcohol policies.[65] Numerous cases followed Young's Market in recognizing state power to regulate commerce in alcohol, unhindered by dormant Commerce Clause considerations.[66] Noting what seemed to be an uninterrupted line of authority from the earliest cases until Bacchus Imports, Ltd. v. Dias, at least two current Justices have indicated their belief that the Broad Standard approach in Young's Market is still good law.[67]
The Supreme Court shifted away from Young's Market by adopting the Modern Accommodation approach in Bacchus Imports, Ltd. v. Dias in 1984.[68] In Bacchus, the Court held that Hawaii's tax on interstate alcohol shipments unconstitutionally violated the dormant Commerce Clause, given its inherently discriminatory purpose and effect.[69] The Hawaiian legislature had exempted several Hawaiian-made products from the tax to aid the local liquor industry.[70]
The majority in Bacchus departed dramatically from Young's Market and its progeny in finding that alcohol shipping regulations are still within the purview of the dormant Commerce Clause.[71] In Bacchus, the Court indicated that it would almost always invalidate facially discriminatory statutes.[72] The Court recognized a need to consider the interaction between the principles of the Twenty-First Amendment and the dormant Commerce Clause.[73] While the Bacchus majority developed the Modern Accommodation two-part framework for analyzing ADSL cases, the Court did not formulate the specific analytical steps necessary in the first tier of the Modern Accommodation approach.[74] These steps were detailed in the later case of Brown-Forman Distillers Co. v. New York State Liquor Auth. discussed below.[75]
Despite the clarity the Bacchus rule may provide, critics have attacked the opinion.[76] They argue that the majority used precedent out of context.[77] Critics also argue that the majority cited cases irrelevant to proper analysis.[78] In Bacchus, several Justices dissented, voicing their adherence to the Broad Standard view.[79] In addition, at least one recent Supreme Court decision appears to limit Bacchus's core concerns approach while upholding a state's right to regulate alcohol sales.[80]
New York StateLiquor Auth.
Two years after Bacchus, the Supreme Court heard another case pitting the Commerce Clause against the Twenty-First Amendment.[81] In Brown-Forman Distillers Co. v. New York State Liquor Auth., the Court struck down a state statute that regulated commerce extraterritorially.[82] The Court applied the reasoning from Bacchus in noting that it would evaluate state actions under both the Commerce Clause and the Twenty-First Amendment.[83]
In Brown-Forman, the Court further clarified the first-tier of the Modern Accommodation approach.[84] Under Brown-Forman's first-tier analysis, the Court employed a two-part approach.[85] First, the Court formulated a virtually per-se rule that states may not constitutionally enact certain discriminatory statutes.[86]
In the second part of Brown-Forman's first-tier analysis, the Court applied a balancing test.[87] Under this approach, courts must weigh certain factors in examining state statutes.[88] Essentially, the state must show that the law serves a legitimate state purpose that cannot be achieved in a less discriminatory manner, or the court will hold the law invalid.[89]
Rhode Island
In 44 Liquormart, Inc. v. Rhode Island, the Supreme Court indicated that it might depart from the Modern Accommodation approach recognized in Bacchus.[90] In Liquormart, the Court reversed a Rhode Island Supreme Court decision that had dismissed an appeal by a liquor retailer challenging a price advertising ban.[91] The Court held the ban unconstitutional under the First Amendment, because it abridged the free speech rights of advertisers.[92]
In addition to its First Amendment analysis, the Court in Liquormart signaled a possible return to the Broad Standard approach.[93] Specifically, the Court stated that the Twenty-First Amendment gives states power to prohibit commerce in, or use of, intoxicating liquors.[94] Thus, the Amendment limits the reach of the Commerce Clause.[95]
Lyons
While not implicating the Twenty-First Amendment, Hillside Dairy Inc. v. Lyons may nevertheless help illustrate the analytical approach the current Court would take on an ADSL matter.[96] In Hillside, the Supreme Court in 2003, reaffirmed previous holdings that the dormant Commerce Clause applies to challenges of state regulatory provisions.[97] The Hillside Court held that the discriminatory effect of a state provision renders it subject to disparate treatment claims under the dormant Commerce Clause.[98]
In Hillside, the Court heard an appeal from out-of-state dairy farmers who had sued the state of California, challenging a pooling regulation.[99] The Court considered whether to exempt the pooling mechanism from Commerce Clause scrutiny despite the statute's facial neutrality.[100] The Court held that the farmers' Commerce Clause claim could be heard.[101] Further, the Court held that even absent facial discrimination, the statute could not overcome its discriminatory effect and thus was subject to dormant Commerce Clause analysis.[102]
The Hillside Court recognized a presumption against the validity of discriminatory regulations.[103] Yet it also signaled that courts must undertake a literal examination of congressional enactments to determine whether Congress had authorized the state regulation in question.[104] Specifically, the Court noted that it would not assume that Congress had authorized a discriminatory action "unless such an intent is clearly expressed."[105] Nevertheless, it remains unclear how the Court might analyze ADSLs under dormant Commerce Clause scrutiny.
Split
In tracing the emergence of a body of law that deals with alcohol, this article presents a history of mutable approaches to resolving disputes over states' rights. Since the adoption of the Twenty-First Amendment, early Supreme Court cases such as State Board of Equalization v. Young's Market Co. imposed a Broad Standard approach to resolving dormant Commerce Clause issues. Thereafter, cases such as Bacchus Imports, Ltd. v. Dias, and Brown-Forman Distillers Co. v. New York State Liquor Auth. demonstrated a Modern Accommodation approach to resolution of similar matters. With the recent cases of 44 Liquormart, Inc. v. Rhode Island, and Hillside Dairy Inc. v. Lyons, it appears that the Court has not yet clarified its approach.
Despite the existence of a substantial amount of Twenty-First Amendment litigation and history, the Supreme Court has not yet provided a definitive framework for determining the constitutionality of an ADSL.[106] Litigants have presented the federal courts with ADSL cases on at least seven different occasions.[107] The resulting appellate opinions evidence a clear split in authority, with two courts finding that ADSLs do not fall under the ambit of dormant Commerce Clause protection,[108] and other courts taking the view that the Commerce Clause and Twenty-First Amendment interact to limit a state's right to enact ADSLs.[109] This section details the current circuit split with an analysis of several representative decisions.
Only two federal appellate courts have found a state ADSL constitutionally permissible.[110] In the first decision, Bridenbaugh v. Freeman-Wilson, the Seventh Circuit upheld Indiana's direct shipment ban.[111] In Bridenbaugh, Indiana appealed a district court ruling that its ADSL was unconstitutional.[112] In the district court, consumers had successfully challenged the ADSL statute, which prohibited all direct shipments of wine into the state by any person in the wine-selling business.[113]
On appeal, the Seventh Circuit reversed.[114] The court noted that Indiana's ADSL required all alcohol sales to pass through its state distribution system regardless of origin.[115] Therefore, the Court concluded that the ADSL regulated evenhandedly and thus was not subject to Commerce Clause scrutiny under the Modern Accommodation approach.[116]
In choosing the Broad Standard analytical approach, the court expressed its aversion to the dormant Commerce Clause.[117] Bridenbaugh's treatment of the constitutional question essentially dispensed with the dormant Commerce Clause analysis in Bacchus.[118] Instead, the court rejected Commerce Clause scrutiny in favor of a literalist approach that focused on Section Two of the Twenty-First Amendment.[119]
Four years after Bridenbaugh, the Second Circuit decided Swedenburg v. Kelly.[120] The Second Circuit adopted the Broad Standard approach from Bridenbaugh, recognizing that the text of the Twenty-First Amendment saved the statute.[121] Like Bridenbaugh, the state in Swedenberg contested a lower court decision overturning the ADSL on constitutional grounds.[122] The state successfully argued that the ADSL regulated evenhandedly and thus was facially neutral.[123] While the Second Circuit ultimately found provisions of the ADSL unacceptable on First Amendment grounds, it clearly stated that the Twenty-First Amendment permitted New York to control alcohol use.[124] The Swedenberg decision is one of the cases that the Supreme Court will hear this term as it examines these issues.
Since the Bridenbaugh decision, no appellate court has found a state ADSL fully constitutional.[125] In the remaining decisions, all the courts have found the ADSLs at issue unconstitutional as drafted.[126] With the exception of Swedenburg, most recent cases have fallen within this group of decisions.
In one of the most poignant examples of an ADSL found to violate the dormant Commerce Clause, the Fifth Circuit ruled against the state regulatory scheme in Dickerson v. Bailey.[127] In Dickerson, the court used a Modern Accommodation approach to find Texas' ADSL facially discriminatory and unconstitutional.[128] The court recognized the validity of the state's three-tier distribution system.[129] Yet, in Dickerson, the legislative record indicated the presence of a discriminatory intent behind the ADSL.[130] Therefore, the Dickerson court concluded that the proper remedy was a full injunction against the law.[131]
More recently, the Sixth Circuit in Heald v. Engler found that Michigan's ADSL contained implicit discrimination in violation of the dormant Commerce Clause.[132] On appeal from an earlier district court decision granting summary judgment to the state, the Sixth Circuit reviewed the constitutionality of Michigan's ADSL system.[133] The Heald court used a Modern Accommodation approach in determining that the validity of Michigan's ADSL required a balancing test, and that the implications of any relevant core concerns were nonexistent.[134] The Sixth Circuit reversed the district court decision. The court noted that its inquiry focused on whether the ADSL advanced "a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives."[135]
Both the Broad Standard approach used in Bridenbaugh and Swedenburg, and the Modern Accommodation approach used in Dickenson and Heald serve as evidence of a circuit split.[136] The application of Commerce Clause analysis to state ADSLs is not yet consistent throughout the country.[137] Thus, the correct analytical approach to resolving ADSL questions requires clarification by the Court when it decides the issue.[138]
Perhaps recognizing the important constitutional question presented in ADSL litigation, the Supreme Court of the United States consolidated Heald with Swedenburg for review this term.[139] In Heald, Michigan's Attorney General appealed to the Court for review, while in Swedenburg the respondent appealed the case. The Court limited the question for review to whether a state regulatory scheme violates the dormant Commerce Clause when it restricts shipments by out-of-state wineries, while permitting shipment by in-state wineries.[140]
Since the current state of ADSL law presents a shroud of uncertainty, the pending Supreme Court decision will help to allay fears of future unpredictable appellate decisions. This Section argues that two issues will likely affect the Court's outcome. First, while the Court appears ready to resolve the matter using a textual approach, the vague language of the Twenty-First Amendment will likely yield to other constitutional provisions. Second, three-tiered distribution systems are obsolete for controlling wine distribution. The Court should recognize them as an unsavory alternative to direct shipping.
Hillside Suggests That the Current Supreme Court May Abandon the Modern Accommodation approach
Hillside is the latest Supreme Court case indicating that the Court may abandon the Bacchus Modern Accommodation approach. In Hillside, the Court emphasized a textual approach to resolving cases that implicate the dormant Commerce Clause.[141] The Hillside court indicated that it would only uphold discriminatory regulations when explicitly authorized by Congress.[142] Thus, when faced with a case where the Twenty-First Amendment purportedly authorizes an ADSL, the Court seems more likely to follow Liquormart and reject the Modern Accommodation approach in favor of a Broad Standard approach that gives deference to the express text of the Twenty-First Amendment.[143]
Interestingly, a highly textual approach may lead the Court to a different result than that typically found under the Broad Standard framework. The well-known constitutional law scholar Professor Laurence Tribe has noted that the Twenty-First Amendment does not expressly grant any power to states.[144] Read literally, the amendment "prohibits the very conduct it was apparently meant to authorize the states to prohibit," and thereby only prohibits individuals' conduct.[145]
Such an interpretation, if adopted by literalist justices on the Supreme Court, might lead to the same result that would be reached under the Modern Accommodation approach. Because the Twenty-First Amendment does not expressly authorize states to enact discriminatory alcohol statutes, the Court would likely find it necessary to examine ADSLs in light of competing constitutional provisions.[146] Thus, while the whole Court may no longer approve of the Modern Accommodation approach, it may reach the same result, with some justices taking a highly textual approach, and others continuing to harmonize under the Bacchus standard.
Not only would such a holding bring together the various ideologies of the current Court, but it would also be consistent with the text of the Twenty-First Amendment, the reasoning of recent appellate dormant Commerce Clause cases, and the holding of Bacchus. This interpretation would be more consonant with the Supreme Court's view that the Twenty-First Amendment does not exist independently of other federal interests and constitutional provisions.[147] The Court has recognized the interplay between the Twenty-First Amendment on one hand, and the dormant Commerce Clause,[148] First Amendment,[149] Fourteenth Amendment,[150] Sherman Act,[151] and Supremacy Clause on the other.[152] Those who suggest that the Court will adopt a textual approach to give states unfettered power in creating ADSLs fail to consider the larger body of case law that such an interpretation would undermine.[153]
Regardless of any Constitutional basis for overturning ADSLs, public policy and logic indicate that state three-tier distribution systems should not encumber out-of-state manufacturers. State distribution systems are not designed to regulate out-of-state shipping and are not undermined by such shipping.[154] In addition, the application of such distribution systems to out-of-state shippers is patently anticompetitive.[155]
The overall design of state distribution systems is not one that should logically apply to an out-of-state winery. Most states distribute alcohol through a three-tiered system.[156] Under such a system, state-licensed manufacturers sell to state-licensed wholesalers who, in turn, sell to state-licensed retailers, from which consumers make their purchases.[157] State ADSLs subject out-of-state manufacturers to the rules and controls of the distribution system.[158] These manufacturers, however, are not within the class that state legislatures seek to regulate under such a system, given their out-of-state citizenship.[159]
Further, state distribution systems are not undermined by out-of-state shipping. States adopted three-tier distribution systems primarily as a result of tied-house limitations, which states had earlier passed to prevent monopolies in manufacturing, distribution and retail of alcoholic beverages.[160] In part, states intended these systems to prevent manufacturers from exclusively selling their products at manufacturer-run retail shops.[161] The system also proved successful as the common alcohol product to be regulated, beer, had a short shelf-life and was not suitable for long-distance transportation. This underlying rationale does not apply to a direct-shipper, who sells directly to consumers rather than through a retail establishment. Out-of-state direct shippers, therefore, do not fall within the contemplated class of manufacturers that tied-house laws seek to regulate.
Finally, requiring out-of-state manufacturers to comply with in-state distribution systems is patently anticompetitive.[162] Wineries should not have to resort to transacting with state-licensed distributors and wholesalers who determine their products' market success.[163] In a free market, unencumbered by state balkanization of trade, a direct shipper would be able to conduct business with the customers they want, rather than with those that the states allocate. Such a system would result in more competition, and would make a positive contribution to consumer and social welfare.[164]
This article discussed the emergence of a body of law controlling alcohol use and states' rights. In resolving issues of state alcohol law, the Supreme Court initially created a Broad Standard approach. The Court later adopted a Modern Accommodation standard. As a result, the lower courts are currently unable to determine a proper method for analyzing the constitutionality of state ADSLs.[165] The appellate courts are split on whether direct shipping is legal. The Supreme Court has not yet spoken on the issue.
When it resolves the issue this term, the Court will likely find discriminatory ADSLs unconstitutional based upon dormant Commerce Clause and policy grounds. The Court is likely to take a highly textual approach, which will reveal inadequacies within the text of the Twenty-First Amendment, making it necessary to harmonize state ADSLs with the dormant Commerce Clause. The Court will also likely recognize that three-tiered systems are inadequate to handle direct shipment of wine. Additionally, for those in the wine industry, the trend in the appellate courts appears to foreshadow this result. ADSLs have been overturned in all but two appellate cases.[166] Wine lovers may be guardedly optimistic that, following Bacchus and Hillside, the Supreme Court will overturn restrictive shipping laws. But for now, they must proceed carefully. Shipping fragile wine bottles is a delicate business, especially when the law is unstable.
The court has consolidated three cases for consideration noting that question for consideration after consolidation is, "Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the Dormant Commerce Clause in light of Sec. 2 of the 21st Amendment?" See Heald v. Enger, 342 F.3d 517 (6th Cir. 2003), cert granted under Granholm v. Heald, 124 S. Ct. 2389,(U.S., 2004), cert. granted under Mich. Beer & Wine Wholesalers Ass'n v. Heald, 124 S. Ct. 2389(U.S. 2004); Swedenburg v. Kelly, 358 F.3d 223 (2nd Cir. 2004), cert. granted, 124 S. Ct. 2391, (U.S., 2004).
[4] See Staff of Federal Trade Comm'n, Possible Anticompetitive Barriers To E-Commerce: Wine 3 (2003) (noting that more than half of states prohibit or severely restrict direct shipping); id. at 7 (noting that roughly twenty-four states allow interstate direct shipping); see also Wine Institute, Direct Shipment Laws By State For Wineries, available at http://www.wineinstitute.org/shipwine/analysis/intro_analysis.htm (last modified Oct. 20, 2004). Cf. Brief for Appellees at 3-4, Swedenburg v. Kelley,(2d. Cir. 2003)(No. 02-9511(L)).
[6] See, e.g., Heald v. Engler, 342 F.3d 517 (6th Cir. 2003) (holding that implicit discrimination exists in ADSL which requires balancing test to determine if core concerns implicated, and querying whether legitimate means to effect state concerns exist); Dickerson v. Bailey, 336 F.3d 388 (5th Cir. 2003) (finding that ADSL facially discriminated and thus violated dormant Commerce Clause where state showed no core concern justification); Bolick v. Danielson, 330 F.3d 274 (4th Cir. 2003) (remanding earlier district court holding that ADSL violated Constitution in light of new state law); Beskind v. Easley, 325 F.3d 506 (4th Cir. 2003) (striking part of ADSL that discriminated in violation of Commerce Clause where not saved by Twenty-First Amendment); Bainbridge v. Turner, 311 F.3d 1104, 1115 (11th Cir. 2002) (finding that ADSL facially discriminated, but remanding for test on core concerns); see also Swedenburg v. Kelly, 358 F.3d 223 (2nd Cir. 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds); Bridenbaugh, 227 F.3d 848 at 851 (finding regulation constitutional).
[7] U.S. Const. amend. XXI, § 2 ("The transportation 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."); see, e.g., Dickerson, 336 F.3d at 406 (noting that plaintiffs believe discriminatory intent and effect of Texas' alcohol beverage statutes should not receive safe harbor under Twenty-First Amendment). But cf. Heald, 342 F.3d at 519-20 (noting defendants' argument that Twenty-First Amendment saved Michigan's alcohol beverage statute).
[8] See, e.g., Dickerson, 336 F.3d at 392(indicating that plaintiffs challenged Texas's alcohol distribution system for violating Commerce Clause and discriminating against out-of-state wineries).
[9] See, e.g. Heald, 342 F.3d at 519-20 (noting defendants' argument that Twenty-First Amendment saved Michigan's alcohol beverage statute); Dickerson, 336 F.3d at 394 (noting defendants' argument that powers granted under Twenty-First Amendment authorized ADSL); see also Wine & Spirits Wholesalers of America, Cyber Booze Taboo: New Survey Confirms Majority of Americans Oppose Internet Alcohol Sales, Pattern of Shadow Alcohol Sales Show Minors Can Buy Beer (Oct. 22, 2003) (news release), available at http://www.wswa.org/public/media/survey/summary.html (last accessed Feb. 1, 2004) (quoting Wine and Spirits Wholesalers of America CEO Juanita Duggan, who argues that existing system is effective and authoritative).
[10] See Swedenburg, 358 F.3d 223, 246(2nd Cir. 2004)(holding that New York's ADSL system was properly within scope of Twenty-First Amendment and did not violate dormant Commerce Clause or Privileges and Immunities Clause, although the portion of ADSL restricting advertising violated First Amendment); Bridenbaugh, 227 F.3d. at 853-54 (finding that ADSL was constitutional because, after Twenty-First Amendment, dormant Commerce Clause does not immunize all interstate shipments from state regulation).
[11] See Heald, 342 F.3d at 524 (invoking Justice Scalia's concurring opinion in Healy v. Beer Inst., 491 U.S. 324, 344 (1989), to conclude that ADSL was invalid because it facially discriminated against interstate commerce); Dickerson, 336 F.3d at 410 (holding that Texas's restrictions on direct sales unconstitutionally discriminated in favor of Texas wineries, and that Commerce Clause prohibits such geographic discrimination); Beskind v. Easley, 325 F.3d 506 (4th Cir. 2003) (holding that discriminatory ADSL violated Commerce Clause); see also Bridenbaugh, 227 F.3d at 853 (noting that recent Supreme Court cases of Brown-Forman Distillers Corp v. New York State Liquor Authority, 476 U.S. 573, 579 (1986), and Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 267 (1984), do not authorize discrimination against out-of-state sellers). Cf. Bainbridge v. Turner, 311 F.3d 1104, 1115 (11th Cir. 2002) (finding that ADSL facially discriminated, but remanding for test on core concerns). See generally Matthew J. Patterson, Note, A Brewing Debate: Alcohol Direct Shipment Laws and the Twenty-First Amendment, 2002 U. Ill. L. Rev 761, 763 (2002) (noting that commentators generally agree that ADSLs would be found unconstitutional under Commerce Clause analysis).
[12] The Wine Industry has retained high-profile counsel. See The Wine Wars, N.Y. Times, Aug. 24, 2003, § 3, at 4 (noting that scholars, litigators and lobbyists retained include Judge Kenneth Starr, former Whitewater special prosecutor, now working with lobbying group Coalition for Free Trade); see also cases cited supra note 9.
[13] Hillside Dairy Inc. v. Lyons, 539 U.S. 59 (2003) (holding that California milk legislation is not exempt from Commerce Clause analysis, and clarifying that discriminatory effects of such legislation supported plaintiffs' disparate treatment claims).
[14] Id. at 61-62(noting that plaintiffs questioned constitutionality of state statute under Commerce Clause and Privileges and Immunities Clause).
[15] Id. at 66 (recognizing that Congress has power to authorize discriminatory state regulations, but must clearly express such intent).
[16] Prior to the Twenty-First Amendment the Supreme Court heard an early direct shipment case. In Rhodes v. Iowa, the Court found a shipping regulation unconstitutional based on Commerce Clause principles. See Rhodes, 170 U.S., 412, 424 (1898)(determining that Iowa law forbidding delivery of goods imposed an unconstitutional burden on interstate commerce in violation of Congress's exclusive power).
[17] U.S. Const. amend. XVIII (creating prohibition); U.S. Const. amend. XXI. (repealing prohibition).
[19] Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274 (1984) (recognizing that despite broad language in early Supreme Court opinions following Twenty-First Amendment ratification, more recent Supreme Court decisions have recognized obscurity in legislative history of Section Two).
[20] See South Dakota v. Dole, 483 U.S. 203, 206 (1987) (agreeing with Bacchus's observation that Twenty-First Amendment's meaning is obscure and noting current inability to precisely define its bounds).
[21] See U.S. Const. amend. XVIII; see also Duncan Baird Douglas, Constitutional Crossroads: Reconciling the Twenty-First Amendment and the Commerce Clause to Evaluate State Regulation of Interstate Commerce in Alcoholic Beverages, 49 Duke L.J. 1619, 1662 n.144 (2000) (noting that ratification of Eighteenth Amendment made debate over Webb-Kenyon Act moot); Stephen Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 499 (1997) (indicating that Eighteenth Amendment closed book on state regulations).
[22] See Brannon P. Denning, Smokey and the Bandit in Cyberspace: the Dormant Commerce Clause, the Twenty-First Amendment, and State Regulation of Internet Alcohol Sales, 19 Const. Commentary 297, 301 (2002).
[23] Id.; see also Stephanie Ahrens Waller, Comment, Bacchus Rules; Recent Court Decisions on the Direct Shipment of Wine, 40 Hous. L. Rev. 1111, 1116-17 (2003) (noting that large percentage of electorate voted for Twenty-First Amendment because they objected to authoritative federal government).
[24] U.S. Const. amend. XVIII, repealed by U.S. Const. Amend. XXI; see also Heald v. Engler, 342 F.3d 517, 522 (6th Cir. 2003) (noting that Twenty-First Amendment repealed Eighteenth Amendment, thereby ending prohibition).
[26] U.S. Const. amend. XXI, § 2. See discussion infra Part III.A for a more detailed explanation on the ostensible powers the Twenty-First Amendment afforded states. See generally Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 Const. Commentary 217 (1995) (arguing that faults with literal interpretation of Twenty-First Amendment obscure its actual meaning).
[27] See 49 Stat. 877 (1935) (current version at 27 U.S.C. § 122 (2002)). This provision reads in part:
The shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State . . . into any other State . . . [which] is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited.
27 U.S.C. § 122 (2002). The Liquor Law Repeal and Enforcement Act was a reenactment of an earlier version of the Webb-Kenyon Act. See Webb-Keynon Act of 1913, 37 Stat. 699 (1913). Several courts have viewed the earlier Webb-Keynon Act as the statutory counterpart to the Twenty-First Amendment because it attempts to restrict shipment or transportation of alcohol into a state, territory, or district. See Bainbridge v. Turner, 311 F.3d 1104, 1110-11 (11th Cir. 2002) (indicating that Web-Kenyon Act must be read congruently with Twenty-First Amendment); Mount Hood Beverage Co. v. Constellation Brands, Inc., 63 P.3d 779, 789-790 (Wash. 2003) (noting that Webb-Kenyon Act preceded Twenty-First Amendment and was its statutory counterpart).
[28] See Bainbridge, 311 F.3d at 1110-11 (noting Florida's argument that Webb-Kenyon Act constituted reconveyance of regulatory authority to states, with corresponding immunization from Commerce Clause scrutiny); Mount Hood, 63 P.3d at 789 (noting distributors' argument that Congress's reenactment of Webb-Kenyon Act serves as conveyance of state alcohol regulatory power). See discussion infra Part I.A.2 for a more detailed explanation of the dormant Commerce Clause.
[29] See Bainbridge, 311 F.3d at 1110-11 (noting that Webb-Kenyon Act is not independent of Twenty-First Amendment); Mount Hood, 63 P.3d at 789-90 (citing Bainbridge, 311 F.3d at 1110-11).
[32] Id. For an explanation of the powers granted by the Act, see Staff of Federal Trade Comm'n, possible Anticompetitive Barriers To E-Commerce: Wine 10 (2003) (noting that state attorneys general have power to sue).
[33] See 27 U.S.C. § 122a(e)(2) (2002) (stating that rules of construction should limit interpretation to jurisdiction only and that courts shall not construe Act to grant states any additional powers).
[35] Id. (detailing several exceptions that permit winery to ship where otherwise restricted, if: purchaser was physically present at winery, purchaser is of legal drinking age, shipping container receives adult signature upon delivery, shipment is for personal use only, and purchaser could have carried shipment lawfully into location where shipment was sent).
[37] See Mike Steinberger, Wine's World: Grape Contenders, SLATE MAGAZINE, at (Feb. 6, 2004) ( "After 9/11, the FAA tightened restrictions on carry-on luggage, making it extremely difficult to bring wine into the cabin.").
[38] 27 U.S.C. § 124 (2002). As a response to the recent restrictions placed on airline passengers as a prophylaxis to terrorism, the FAA has limited what passengers may bring on an aircraft. Id. Under these limits, passengers may not currently bring bottled alcohol onboard. Id.
[39] See Eric L. Martin, Note, A Toast to the Dignity of States: What Eleventh Amendment Jurisprudence Portends for Direct Shipment of Wine, 31 Hofstra L. Rev. 1303, 1321 (2003) (noting that winemakers view provision as important because it indicates that Congress may acknowledge legitimacy of direct shipments).
[40] The Commerce Clause, as written, designates that Congress has the power to "regulate Commerce . . . among the several states." U.S. Const., art. I, § 8, cl. 3. Where there is no federal law on point, courts generally infer federal retention of Commerce Clause powers. See cases cited infra note 42; see also Erwin Chemerinsky, Constitutional Law § 3.B at 317 (2001) (noting that no constitutional provision expressly declares that states may not burden commerce, but that Supreme Court has inferred this from grant of power to Congress); John Faust, Note, State Power to Regulate Alcohol Under the Twenty-First Amendment: The Constitutional Implications of the Twenty-First Amendment Enforcement Act, 41 B.C. L. Rev. 659, 660-61 (2000) (noting that since Cooley v. Board of Port Wardens, 53 U.S. (12 How.) 299, 319-20 (1851), Supreme Court has recognized existence of dormant Commerce Clause); see also Emily V. Griffen, Comment, "Relations Stop Nowhere": ERISA Preemption of San Francisco's Domestic Partner Ordinance, 89 Calif L. rev 459, n.107 (2001) (recognizing that dormant Commerce Clause doctrine provides grant of power to Congress).
[41] See sources cited supra note 36; see also Gordon Eng, Note, Old Whine in a New Battle: Pragmatic Approaches to Balancing the Twenty-First Amendment, the Dormant Commerce Clause, and the Direct Shipping of Wine, 30 Fordham Urb. L.J. 1849, 1850 (2003) (recognizing uncertainty on boundaries of Commerce Clause and noting that constitutional law professors John Nowak and Ronald Rotunda observed this as basis for dormant Commerce Clause).
[42] See, e.g., West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)(holding that state law favoring in-state dairy farmers is unconstitutional because dormant aspect of Commerce Clause limits state power to discriminate against interstate commerce); Dennis v. Higgins, 498 U.S. 439, 447 (1991)(noting that dormant Commerce Clause can restrict state regulation of interstate commerce); see also United States v. IBM, 517 U.S. 843, 852 (1996)(noting that Supreme Court has long recognized negative implications of the Commerce Clause).
[43] See discussion infra Part II for a more detailed look at how the appellate courts have recently analyzed the issue. See Elizabeth D. Lauzon, Annotation, Interplay Between Twenty-First Amendment and Commerce Clause Concerning State Regulation of Intoxicating Liquors, 116 A.L.R. 5th 149, *2a (2004) (recognizing that courts follow analysis which either interprets Twenty-First Amendment as giving broad rights to states, or that harmonizes Twenty-First Amendment with Commerce Clause).
[45] See Duckworth v. Arkansas, 314 U.S. 390 (1941); Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939); State Bd. of Equalization v. Young's Mkt. Co., 299 U.S. 59 (1936); Lauzon, supra note 40, at *2a. See discussion infra Part I.B for a more detailed look at Supreme Court cases recognizing the broad standard rule. See discussion infra Part II.A for a more detailed look at the federal appellate courts that recently adopted this approach.
[46] See Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Lauzon, supra note 43, at *2a. See discussion infra Part I.B for a more detailed look at Supreme Court cases recognizing the modern accommodation rule. See discussion infra Part II.A for a more detailed look at the federal appellate courts that recently adopted this approach.
[47] See Brown-Forman, 476 U.S. at 579 (stating that two-tier approach is needed for analyzing Commerce Clause application to Twenty-First Amendment litigation); Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337, at *15-16 (2d Cir. Feb. 12, 2004) (recognizing that four previous circuit courts utilized two-step analytical framework); see also Eng, supra note 41, at 1864 (stating that modern application of dormant Commerce Clause in Twenty-First Amendment litigation is two-tier analysis).
[48] See, e.g., Brown-Forman, 476 U.S. at 579 (identifying two-part approach); Dale Bish, Note, The Unfounded Fears of Environmental Balkanization: The Ninth Circuit's Dangerous Expansion of the Commerce Clause, 47 U.C. Davis L. Rev 605, 617 (2003) (detailing approach to commerce clause analysis).
[51] See, e.g., Brown-Forman, 476 U.S. at 579 (noting that balancing test applies to statutes passing out of earlier analysis).
[52] See sources cited supra note 46; see, e.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
[54] See Bacchus Imports, Ltd. V. Dias, 468 U.S. 263, 275 (1984) (noting that courts must analyze statute to see if Twenty-First Amendment can save it); Lauzon, supra note 40, at *2a (noting that Modern Accommodation Approach requires Twenty-First Amendment analysis).
[56] See, e.g., Bolick v. Roberts, 199 F. Supp. 2d 397, 443 (D. Va. 2001) (noting that, following Bacchus, Supreme Court requires examination of legitimate state interest under core concerns of Twenty-First Amendment); see also Eng, supra note 38, at 1898 (discussing core concerns).
[57] For an analysis on the Supreme Court's interpretation of core concerns, see Timothy Schnabel, A Circuit-Splitting Headache: The Hangover of the Supreme Court's Twenty-First Amendment Jurisprudence, 21 Yale L. & Pol'y Rev. 547, 549-52 (2003) (noting that in North Dakota v. United States, 495 U.S. 423 (1990), Supreme Court recognized legitimate state concerns of temperance, ensuring orderly market conditions, and raising revenue, but that core concerns remain undefined).
[58] See Patterson, supra note 9, at 783-84 (noting that Supreme Court has vaguely detailed that Twenty-First Amendment limits effect of dormant Commerce Clause on state regulatory power over delivery or use of intoxicating beverages); Lauzon, supra note 43, at *2a (noting that Supreme Court has never explicitly overruled Broad Standard Rule). But see Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337, at *23 (2d Cir. Feb. 12, 2004) (noting that Supreme Court jurisprudence has conclusively adopted Modern Accommodation approach); id. at *31 n.10 (noting that no Supreme Court precedent requires use of Modern Accommodation approach in like cases).
[59] See generally Lauzon, supra note 43, at *4 (identifying that thread of cases since Bacchus follows Modern Accommodation approach); see, e.g., Brown-Forman, 476 U.S. 573; Healy v. Beer Institute, Inc., 491 U.S. 324 (1989). But see 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (noting that Twenty-First Amendment grants states power to control commerce in alcoholic beverages).
[60] See, e.g., id.; Bacchus Imports, Ltd. V. Dias, 468 U.S. 263 (1984); State Bd. Of Equalization v. Young's Mkt. Co., 299 U.S. 59 (1936).
[62] Patterson, supra note 11, at 772 (noting that original view identified unconditional grant of State power); see also Bacchus, 468 U.S. at 274 (noting that language in earlier opinions indicated that section two gave States broad power to establish terms under which imported liquor might compete with domestic liquor); see, e.g., Young's Market, 299 U.S. at 59 (holding that states need not meet strictures of Commerce Clause when regulating sales and importation of liquor within state).
[64] Id. (concluding that fee on importation of beer would have been unconstitutional prior to Twenty-First Amendment as it directly burdens interstate commerce).
[65] See id. at 62-63 (noting that state could constitutionally adopt lesser degree of regulation than total prohibition, including state monopoly on manufacture and sale of beer, prohibitions on competing importations, or imposts on importation).
[66] See, e.g., Hostetter v. Idlewild Bon Voyage Liquour Corp., 377 U.S. 324, 330 (1964); United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 299 (1945); Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939).
[67] See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 557-58 (1991) (O'Connor, J., dissenting) (noting that Bacchus created new rule that Commerce Clause places restrictions on state power under Section Two of Twenty-First Amendment and thus overruled authoritative Young's Market line of cases); id. at 558 (Stevens, J., dissenting) (explaining novelty of Bacchus reasoning).
[69] Bacchus, 468 U.S. at 272-73 (noting that Hawaiian legislation constituted economic protectionism and had purpose and effect of discriminating in favor of local products); see also West Lynn Creamery v. Healy, 512 U.S. 186, 205 (1994) (recognizing that Bacchus indicated that preservation of local industry by protection against interstate competition is hallmark of economic protectionism prohibited by Commerce Clause).
[71] Id. at 275 (noting that Commerce Clause applies to state regulation of alcoholic beverages despite Twenty-First Amendment). See generally Patterson, supra note 11, at 773 (noting that, prior to Bacchus, courts hinted that state alcohol regulations were not completely exempt from Commerce Clause restrictions, but that Bacchus decision was novel).
[72] See Bacchus, 468 U.S. at 273 (noting that statute with purpose and effect of discriminating in favor of local products is invalid).
[73] See id. at 275 (noting that Court must identify whether principles underlying Twenty-First Amendment sufficiently outweigh Commerce Clause principles which might otherwise be offended).
[75] See Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986) (identifying two-tier approach).
[76] See, e.g., James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 557-58 (1991) (O'Connor, J., dissenting) (arguing that Bacchus approach is flawed); Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337, *15-16 (2d Cir. Feb. 12, 2004) (recognizing that Bacchus opinion was anomalous given procedural irregularities).
[77] See Beam, 501 U.S. at 557-58 (O'Connor, J., dissenting) (arguing that cases cited by Bacchus Court in support of its new ruling provided no notice of impending change, because all held that Twenty-First Amendment did not give states authority to override congressional legislation and dealt essentially with Supremacy Clause).
[78] Id. (arguing that cases were irrelevant because they involved relationship between Twenty-First Amendment and Congress's authority to legislate under (positive) Commerce Clause, while Bacchus and Young's Market line of cases involved authority to regulate liquor unconstrained by dormant Commerce Clause).
[79] See Bacchus, 468 U.S. at 278-87 (Stevens, J., Rehnquist, C. J., & O'Connor, J. dissenting) (noting that majority places too little weight on Twenty-First Amendment); id. at 282 (Stevens, J., dissenting) (noting that Hawaii had power under Twenty-First Amendment to prohibit alcohol use).
[80] North Dakota v. United States, 495 U.S. 423, 432 (1990) (holding North Dakota's labeling requirements constitutional because they fall within core of state's power under Twenty-First Amendment). But see id. at 444 (Scalia, J., concurring) (noting that state may not enact taxes or regulations that discriminate); Heald v. Engler, 342 F.3d 517, 527 (6th Cir. 2003) (noting that North Dakota dealt with Supremacy Clause, and therefore has little value in case requiring Commerce Clause analysis).
[86] See Brown-Forman, 476 U.S. at 579 (noting that Court almost always strikes down statutes which directly discriminate or have discriminatory effect); see also Healy v. Beer Inst., 491 U.S. 324, 337 n.14 (1989) (agreeing with Brown-Forman analysis).
[87] Brown-Forman, 476 U.S. at 579 (noting that courts must examine statute with only indirect effects on interstate commerce to see whether state's interest is legitimate and whether burden on interstate commerce clearly exceeds local benefits); see also Eng, supra note 41, at 1864 (describing second part of analysis).
[89] Id.; see also Eng, supra note 41, at 1864 (stating that criteria for analyzing statute follows approach created in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
[90] 517 U.S. 484 (1996). See generally, Lauzon, supra note 41, at *5 (noting that Court in Liquormart indicated presumption of validity for state statute regulating alcohol due to Twenty-First Amendment rights).
[93] Id. at 514-15 (noting that Twenty-First Amendment gave states power to prohibit commerce in, or use of, alcoholic beverages).
[98] Id. at 61-62. (noting that statute could be challenged on Commerce Clause and Privileges and Immunities Clause grounds).
[103] See id. (noting that state regulation could be lawfully discriminatory where Congress clearly indicates such an intent); see also Maine v. Taylor, 477 U.S. 131, 138-39 (1986) (noting that states can overcome free trade guarantee of Commerce Clause only when congressional direction to do so is unmistakably clear).
[107] See cases cited supra note 6. As of October 7, 2003, Parker v. Morrison was filed in the district court for Arizona bringing the total number of federal ADSL cases to eight. E.g., Coalition for Free Trade, Litigation Summaries, available at http://www.coalitionforfreetrade.org/litigation (last accessed Mar. 3, 2004) (listing recent ADSL cases filed).
[108] See Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337 (2d Cir. Feb. 12, 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds); Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, 851 (7th Cir. 2000) (finding ADSL constitutional).
[110] See Swedenburg, 2004 U.S. App. LEXIS 2337 at *45 (holding state ADSL legitimate under dormant Commerce Clause and Privileges and Immunities clause because of Twenty-First Amendment authorization, but striking down section of provision which violated First Amendment free-speech rights); Bridenbaugh, 227 F.3d at 851 (holding ADSL constitutional under dormant Commerce Clause because of Twenty-First Amendment authorization).
[111] Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000), cert. denied, 532 U.S. 1002 (2001).
[115] Id. at 853 (noting that Indiana required that all liquor pass through its three-tiered system and be subject to taxation, and thus did not functionally discriminate against out-of-state shippers); see also Dickenson v. Bailey 336 F.3d 388, 401 (5th Cir. 2003) (noting that dispositive fact in Bridenbaugh was Indiana's equal application of three-tier system to all alcoholic beverages, regardless of origin).
[116] See Bridenbaugh, 227 F.3d at 853-55; see also Heald v. Engler, 342 F.3d 517, 526-27 (6th Cir. 2003) (noting that Bridenbaugh has been criticized by several federal courts for its failure to engage in dormant Commerce Clause analysis).
[117] Bridenbaugh, 227 F.3d at 849 (noting that case "pits the Twenty-First Amendment, which appears in the Constitution, against the dormant Commerce Clause, which does not").
[118] Id. at 849 (noting that history of Section Two of Twenty-First Amendment confirms ADSL validity).
[120] Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337 (2d Cir. Feb. 12, 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds, but not under First Amendment).
[122] Id. at *11-15 (detailing decision of district court); see also Bridenbaugh, 227 F.3d at 853 (noting that district court found ADSL unconstitutional and state officials appealed).
[123] Swedenburg, U.S. App. LEXIS 2337 at *40 (holding that New York's ADSL scheme was non-discriminatory); see also Bridenbaugh, 227 F.3d at 849 (noting that Indiana's ADSL system did not functionally discriminate).
[124] Swedenburg, U.S. App. LEXIS 2337 at *18 (recognizing that protective doctrine of dormant Commerce Clause should not subordinate plain text of Twenty-First Amendment); id. at *45 (noting that Twenty-First Amendment does not allow ADSLs which prohibit free speech in violation of First Amendment).
[125] See cases cited supra note 11; see also Swedenburg, 2004 U.S. App. LEXIS 2337 at *45 (holding that New York's ADSL did not violate dormant Commerce Clause or Privileges and Immunities Clause, although portion of ADSL violated First Amendment).
[126] See cases cited supra note 11; see also Swedenburg, U.S. App. LEXIS 2337 at *45 (holding that part of ADSL violated First Amendment).
[127] Dickerson v. Bailey, 336 F.3d 388 (5th Cir. 2003) (finding discriminatory ADSLs unconstitutional and striking them completely). The Michigan state attorney general recently submitted a petition for certiorari to the United States Supreme Court in Heald v. Engler, 342 F.3d 517 (6th Cir. 2003). The Sixth Circuit en banc had sustained the original finding. See Heald v. Engler, 2003 U.S. App. LEXIS 23001 (6th Cir. Nov. 4, 2003). Therefore, the Heald case is still active, and Dickerson presents the best final decision finding an ADSL wholly unconstitutional.
[128] See Dickerson v. Bailey, 336 F.3d 388, 410 (5th Cir. 2003) (noting that, because ADSL denied Texas consumers access to out-of-state wine and out-of-state wineries access to Texas citizens, Commerce Clause prohibited resulting geographic discrimination); Beskind v. Easley, 325 F.3d 506, 517 (4th Cir. 2003) (finding that preferential and facially discriminatory nature of ADSL violated Commerce Clause).
[129] See Dickerson, 336 F.3d at 409 (recognizing that legal issue before court was Texas's discriminatory treatment of out-of-state wineries rather than legitimacy of Texas's three-tier system); Beskind, 325 F.3d 506 at 516 (noting that plaintiffs did not challenge North Carolina's three-tiered system perhaps because they recognized its constitutionality under Twenty-First Amendment).
[130] See Dickerson, 336 F.3d at 399 (noting that Texas's legislature clearly identified its discriminatory purpose and intent by denying out-of-state wineries exemptions to three-tier system that it accorded to in-state wineries); id. (noting that Texas's statement of legislative intent candidly declared that purpose of exemptions was to assist Texas wine industry).
[133] Id. at 519 (noting that plaintiffs raise constitutional challenge to Michigan's alcohol distribution system).
[134] Id. at 522 (noting that central question of case involved interaction between Twenty-First Amendment and Commerce Clause).
[136] Compare cases cited supra note 60 (indicating that Bridenbaugh and Swedenburg used broad standard approach) with cases cited supra note 126 (indicating that Beskin and Dickerson utilized a modern accommodation analysis).
[140] See Question presented for review, id.
Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the Twenty-first Amendment?
[141] See Hillside Dairy, Inc. v. Lyons, 539 U.S. 59, 67 (2003) (noting that Court will only allow discriminatory regulations when Congress has explicitly authorized them.).
[143] As Hillside appears to require a textual analysis, and Liquormart also embraces this approach, a future case would likely follow this recent precedent. See discussion supra note 88 (noting that Liquormart indicates that Supreme Court may revert to Broad Standard approach).
[144] See Tribe, supra note 26, at 219 (noting that Twenty-First Amendment fails to specify any state rights, and that such rights are generally held as following some logical necessity).
[146] Assuming that Professor Tribe is correct, then, using Hillside's rationale, the Court would logically not presume the ADSL valid, and would find it subject to disparate treatment claims. See Hillside, 539 U.S. at 67.
[147] See The Wine Wars, supra note 10, at 15 (noting that in spite of Twenty-First Amendment, courts must consider state liquor regulation in light of other federal interests and constitutional mandates); see also Martin, supra note 39 (recognizing that United States Supreme Court has indicated in recent cases that Twenty-First Amendment does not give states unfettered power to regulate alcoholic beverages within their boundaries).
[148] See Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 584 (1986) (noting that Twenty-First Amendment did not entirely remove state regulation of alcohol from reach of dormant Commerce Clause).
[153] See, e.g., Denning, supra note 22, at 300-01 (arguing that recent district court decisions limiting Twenty-First Amendment power were decided erroneously and expressing view that Supreme Court decisions which embraced literal interpretation of Amendment giving states broader powers were correct). But see cases cited supra notes 148-53 (recognizing that federal interests may outweigh Twenty-First Amendment concerns); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 273 (1984) (noting strong federal interest in preventing economic balkanization).
[154] See generally Douglas, supra note 21, at 1621-24 (discussing genesis of distribution systems).
[155] See id. (recognizing that ADSL prohibits competition and excludes manufacturers from selling in-state).
[156] See id. (stating that many states created three-tier system after Twenty-First Amendment); see also Denning, supra note 22, at n.2. (indicating that most states have some form of three-tier shipping system).
[157] Heald v. Engler, 342 F.3d 517, 520 (6th Cir. 2003) (citing Vijay Shankar, Alcohol Direct Shipment Laws, 85 Va. L. Rev. 353, 355 (1999)).
[158] See generally Douglas, supra note 21, at 1622 (stating that ADSL subjects out-of-state winery manufacturer to three-tier system which legislators designed contemplating in-state manufacturers).
[160] See Susan Lord Martin, Wine Wars - Direct Shipment of Wine: the Twenty-First Amendment, the Commerce Clause, and Consumer's Rights, 38 Am. Bus. L.J. 1, 27-28 (2000) (noting that three-tier system was envisioned to thwart gangster domination of liquor market through vertical and horizontal integration).
[162] See generally Douglas, supra note 21, at 1622-23 (recognizing that ADSL prohibits competition and excludes manufacturers from selling in-state).
[163] See Wine Institute, Wine Institute Statement "E-Commerce: The Case of Online Wine Sales and Direct Shipment", available at http://www.wineinstitute.org/communications/statistics/dirship10.30.03.htm (last modified Oct. 29, 2003) (indicating that basis for direct shipping bans is protection of in-state businesses and wholesaler system).
[164] See Amicus Brief for Heald v. Engler, filed by professor Stuart Banner at UCLA School of Law, p. 2-3.
[166] See Heald, 342 F.3d at 524; Dickerson v. Bailey, 336 F.3d 388 (5th Cir. 2003); Bolick v. Danielson, 330 F.3d 274 (4th Cir. 2003); Beskind v. Easley, 325 F.3d 506 (4th Cir. 2003); Bainbridge v. Turner, 311 F.3d 1104, 1115 (11th Cir. 2002). But see Swedenburg v. Kelly, 2004 U.S. App. LEXIS 2337 (2d Cir. Feb. 12, 2004) (finding state ADSL constitutional under dormant Commerce Clause and Privileges and Immunities Clause grounds); Bridenbaugh v. Freeman-Wilson, 227 F.3d 848, 851 (7th Cir. 2000)(finding ADSL constitutional).
Citation
5 U.C. Davis Bus. L.J. 1 (2004)
Copyright
Copr. © L. Red Gobuty, 2005. All Rights Reserved.