Tomorrow, of course, is oral argument in the wine cases. In thinking of how the cases will come out (and hence what ot look for in oral argument), the test is always to try to figure out how 5 votes line up one way or the other. It seems to me that in trying to put oneself in the shoes of the various justices, it seems like the nondiscrimination position should win. It seems like it lines up like this:
Scalia and Thomas: Traditionally strong proponents of the antidiscrimination prong of the dormant commerce clause, I think that they will strike down this blatant protectionism. Scalia already articulated in Healy his position that discrimination removes a state law of the protection of the 21st Amendment. I also believe that Scalia and Thomas will be willing to do the hard work necessary to dig into the original meaning of the 21st Amendment, and to recognize that the full ratification history reveals the 21st Amendment to be an effort to restore the constitutional balance interrupted by the 18th Amendment, and to withdraw the federal government from the disastrous meddling in local police power affairs as it did under the 18th Amendment’s national prohibition regime. I discuss the ratification history of the 21st Amendment in my Wine Wars essays (which are available here) on pages 9-24 Thus, the 21st Amendment restored the local government to its local police power control and the federal government to its role as regulator of interstate commerce, and perpetuated the longstanding limit on the police power that it could not be used to enact discriminatory regulations. Moreover, given the unqualified language of the 21st Amendment, there is no plain language reading that would enable the Court to apply the 21st Amendment to the dormant Commerce Clause, but not the Commerce Clause, Export-Import Clause, 1st Amendment, Equal Protection Clause, and Due Process Clause, as it has already done previously. Once it is recognized that the 21st Amendment contains no exception for these provisions, it becomes impossible to simply apply the plain language.
Breyer: Seems like a clear vote for those challenging the laws. He should understand the policy arguments as articulated in the FTC Report and elsewhere, and will see through the flimsy regulatory arguments advanced by the states.
Kennedy and Souter: Maybe the best predictor of Kennedy and Souter’s votes is the pure absurdity of the state’s position. Because the state’s position essentially boils down to its view that it can do whatever it wants when it comes to alcohol, one suspects that Kennedy and Souter will be discouraged on pragmatic grounds from endorsing such an extreme position. My impression is that Kennedy is responsive to simple pragmatism and common sense, and this case, pragmatism and common sense is contrary to the state’s position. After all, it is difficult to see why it is essential for New York to prohibit out-of-state shipment of wine when 190 in-state wineries are already shipping directly to consumers and the Republic has not collapsed. Perhaps Ginsburg falls in this camp as well.
O’Connor, Rehnquist, Stevens: O’Connor seems wedded to her misunderstanding of the legislative history of the 21st Amendment. On the other hand, her announcement of this position in 324 Liquor Corp. appears to have come unprompted by the briefs or parties in the case, so perhaps she will be willing to revisit the legislative history she relies on there. I have discussed in detail the legislative history sources she relies on and why they do not support her position, on pages 24-34 of my initial Wine Wars essay, which can be found here. As I show there, she has removed her legislative history excerpts from their proper historical and legislative context, thereby getting them exactly backward. Rehnquist and Stevens seem to have followed O’Connor on most of these matters.
By my calculation, therefore, it is hard to see how the states get beyond their 3 hard-core supporters, assuming the states actually keep all of them on board. Indeed, given O’Connor’s position that the legislative history on the 21st Amendment matters a lot, it seems like an appropriate time for her to reconsider the 21st Amendment in light of the full range of legislative history that she ignored in her earlier opinions in alcohol cases.
The bottom line is that the 21st Amendment was designed to repeal the 18th Amendment and to remove the federal government from meddling in local police power affairs and to protect dry states from the possible repeal or overturn of the Webb-Kenyon Act. There is nothing to indicate that it was designed to give a novel and unnecessary power to the state governments to erect protectionist barriers to interstate commerce or to allow wet states to engage in economic warfare with the products of other wet states. It rectified the Supreme Court’s dormant Commerce Clause jurisprudence under the “original package” doctrine which had created a peculiar discrimination in favor of out-of-state alcohol, but certainly did not intend to respond to this by creating a new power of the states to disriminate against out-of-state alcohol.
Finally, note the difficulty of protectionist position in counting to 5 Justices. I can only see three different ways for that position to prevail, none of which are particularly appetizing beyond O’Connor, Rehquist, and Stevens.
First, they could try to apply the plain language, holding that the 21st Amendment gives the states plenary power over alcohol. But given the unqualified language of the 21st Amendment, that position would imply that the state could prohibit only black people from importing wine, or prohibiting only imports of Kosher wine. That does not seem like a position the Supreme Court wants to take. Alternatively, the Supreme Court could interpret the language more narrowly then it is written, and apply it only to the dormant Commerce Clause–but then, of course, it would no longer be a plain language argument.
Second, they could hold that there was no discrimination in this case because of New York’s physical presence requirement. But that would seem to be unlimited in principle as well, and would imply that the same regulations would apply with equal force to Amazon.com and LLBean, requiring a physical presence for the sale of any goods. It is hard to see why the 21st Amendment would change the analysis of whether the laws are discriminatory, as opposed to the question of whether the 21st Amendment saves discriminatory laws that would be unconstitutional for any other product.
Third, the court could simply bless these blatantly discriminatory regulatory regimes. But that holding would undermine the bedrock principle of nondiscrimination which was one of the primary purposes for the creation of the Constitution in the first place. This may be the narrowest position, but unless very narrowly drafted, any ruling on these grounds would seem to invite efforts to erect discriminatory regulations to other products. I honestly don’t see a very attractive mechanism for this Court to uphold these regulations, especially given the nonexistent policy arguments that have been made to support them, and the overwhelming empirical and policy arguments on the other side.
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