Tennessee Wine and Spirits Retailers Assn. v. Blair (18-96)

argument 18-96

Tennessee Wine and Spirits Retailers Assn. v. Blair

Supreme Court of the United States 51 min 5 speakers 8 chapters transcribed 7 days ago official recording ↗

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What historical powers does the 21st Amendment give states over alcohol regulation?

Aaron M. Streett 0:00

We'll hear argument next in Case 1896, Tennessee Wine and Spirits Retailers

Unknown 0:05

Association v. Blair. Mr. Dvoretsky? Mr. Chief Justice, and may it please the Court, in the wake of the nation's failed experiment with Prohibition, the 21st Amendment restored to the States the powers that they previously had under the Wilson and Webb Kenyon Acts. In exercising those powers, both before Prohibition and in its immediate aftermath, States enacted residency requirements, like Tennessee's, to regulate the sale of alcohol within their territory. All along the way, this Court recognized the State's power to do so as part of their virtually complete control over how to structure the liquor distribution system. Under Granholm, that unbroken and undisputed history is dispositive. Residency requirements like Tennessee's are protected from Dormant Commerce Clause scrutiny because they were authorized by the Wilson and Webb Kenyon Acts and uniformly considered constitutional at the time of ratification.

Unknown 0:58

Respondents

Elena Kagan 0:59

offered

Unknown 0:59

—

Elena Kagan 1:00

ask you to clarify for me your position. Justice Sutton, in his dissent, basically said if your legislature came and said we don't want out-of-state wholesalers, distributors, or retailers to be in our chain of distribution because they're going to take business away from our local enterprises. Period. End of story. Are you saying that the State can do that? Are you disagreeing with Justice — with Judge Sutton? Or do you think that there's an economic protectionism — protection against what a State can do?

Unknown 1:50

So I don't think that there is an economic protectionism exception to the 21st Amendment. But even if there were one, as Judge Sutton recognized in applying his test in to the two-year residency requirement in this case, we would still prevail.

Elena Kagan 2:03

Well, except we have a difficulty there, which is you can't look at legislation piecemeal. You have to look at it as a whole. It was written as a whole. It's one paragraph that says two years plus 10. So it's really 12 years because, and he said there's no economic justification for a 10-year residency requirement So what you have to look at is not whether it's two years, but whether there's any reason for a 12-year residency requirement. And if she said no to 10, then it's no to 12.

Unknown 2:41

So, Justice Sotomayor, that gets us into a severability question. But

Elena Kagan 2:45

let's go back to my initial question. Yes, it does, and that's a separate question. And you can argue that one back and forth. But my fundamental question is, you believe the 21st Amendment permits states to discriminate against out-of-state interests. Then does that mean Baucus, Granhold, all our jurisprudence that has invalidated certain state laws was wrong? Is that — are you suggesting we should just disavow all those cases and forget them?

Unknown 3:23

No, no, we're not. And let me address both boxes. I know you want

Elena Kagan 3:26

to limit it to producers, but that's not the way that Granholm talked about them, talked about this issue. But you can slice and dice as much as you want. But is it your position that the 21st Amendment makes all of our other jurisprudence wrong?

Unknown 3:45

No, it's not. And let me explain how to harmonize it. Granholm mandated a historical test. The question in Granholm, which all nine justices agreed upon, was what were the state's pre-prohibition powers? Now, the disagreement in Granholm was about whether states could discriminate against out-of-state products pre-prohibition. But the framework was not an economic protectionism framework. It was a historical question.

Samuel A. Alito 4:12

Can I come back to where I thought Justice Sotomayor started and ask you just very simply, can a State enact a 10-year residency requirement? And if not, why not?

Unknown 4:28

There would not be a Dormant Commerce Clause problem with a 10-year residency requirement. There might be some other constitutional challenge to that, but it would be immune from Dormant Commerce Clause scrutiny. as long as it treated in-state and out-of-state products the

Samuel A. Alito 4:40

same way. Okay. Suppose if it was a grandparent's requirement. So you can't get a liquor license in Tennessee unless your grandparents were Tennessee residents.