Grape Expectations

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Judging from yesterday's oral arguments, things are not looking good for bans on direct interstate wine shipments. Several justices were openly skeptical of the position that the 21st Amendment allows protectonism and the claim that the bans in Michigan and New York could be justified on other grounds. In what looks like a sign of desperation, Michigan's solicitor general urged the Supreme Court to overrule its 1984 decision rejecting a Hawaii excise tax that discriminated against alcoholic beverages from other states. "If you can't grant a tax exemption," said Justice John Paul Stevens, "it seems to me a fortiori that you can't prohibit importation."

Those who are still unpersuaded by the constitutional (as opposed to the libertarian) case against the shipment bans may want to have a look at George Mason law professor Todd Zywicki's paper on the intent of the 21st Amendment, which a reader cited the other day in a Hit & Run comment. "The 21st Amendment removed the federal government from meddling in local affairs, but did not cede a novel and unnecessary power to the States to meddle in the federal government's traditional control over interstate commerce," Zywicki writes. "In other words, the 21st Amendment enabled dry States to remain dry if they so chose, but it did not empower wet states to engage in economic warfare against the products of other wet States."

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  1. Well they might surprise me on this one. On the other hand, a decision in favor of interstate shipments would be consistent with the SCOTUS’s, We Are the Supreme Power in All the Land, doctrine. There are no limits on the power of Congress to legislate or regulate and We will tell you what those laws and regulations mean.

  2. Warren, what are you talking about?

    A decision in favor of interstate shipments will do nothing to empower Congress or SCOTUS.

    It will be a limitation on the power of the states, via application of the Commerce Clause of the Constitution.

  3. R C,
    Yes you are exactly right. This is why I (had) expect(ed) a decision in favor of more regulation. However, if they rule the other way it would be in conflict with their long held opinion that the Commerce Clause give Congress unlimited power over the States (unless of course Congress tries to do something the majority of the SCOTUS disapproves of. Like limiting school children’s exposure to firearms for instance)

  4. RC, a decision against the states’ regulation would be another assertion of SCOTUS’s power over the states.

    You thought you had that power, did you? Well, you don’t. Because I said so, that’s why.

  5. joe, do you think the Constitution should be enforceable against government(s) in the US? If so, by who?

  6. Joe,

    How’s that? The Commerce Clause has been abused and misused for years, but prohibiting blatantly anti-free-trade regulations at the hands of states who are engaged in interstate commerce, well, I would venture that that is one of the few entirely valid applications of the Clause.

    “You thought you had that power, did you? Well, you don’t. Because I said so, that’s why.”

    No, not just because they said so, because Article I, Section 8, Clause 3 of the Constitution says so.

    As I said, the clause has been abused quite a bit over the years, due to many crazy interpretations. One of the craziest, in my view, is the “current of commerce” argument. It goes that, even if an act of commerce is localize and entirely intrastate, Congress can regulate it, because the localized commerce has a secondary effect on the larger regional and national commercial currents.

    However, this is a case of pure out-and-out protectionism. States are going out of their way to protect and uphold the extensive middle-man regimes that their regulations helped create. They have enacted tax and regulatory schemes that unfairly favor in-state producers, while punishing those across the border. And they have waged a war on the consumers, for the consumers are the ones who pay for these extensive systems, via higher prices at the wine shop. Not to mention the probability that you can’t even purchase a wine in your state. Believe me, I work at a wine shop, and there are wines that I want, but no distributor will carry…but I can’t purchase it direct from the winery, because my state prohibits it. Actually, they did prohibit it. Yay, Virginia General Assembly! However, even with legal wine shipments, it takes a whole lot of effort and money just to apply for the VA license, and most wineries won’t bother. So, even though it’s now “technically” legal, the licensing scheme via the Alcoholic Beverage Control is structured so as to make it economically unfeasable anyway.

    If this isn’t a valid application of the Commerce Clause, then I don’t know what is.

  7. The US Constitution establishes a government of enumerated powers, and also places some specific limitations on government power. When the government exceeds it’s Constitutional authority, it is the just and proper role of the Judiciary to strike down such encroachment on the domain of the people. It is a disgrace upon our nation that the SCOTUS has failed so miserably, and in ever increasing vulgarity, in this charge. Their rulings being more heavily influenced by whim and desire than by either spirit or letter of the document from which their power derives.

  8. Evan,
    I also agree with what you say as well. My point is that a correct ruling here, would none the less be consistent with past abuses.

  9. Logically, that is true. Say you’re doing multiplication tables, and you answer “16” for every problem. 10×8=16. 5×3=16. 2×12=16. 4×4=16. The final answer would be consistent with the previous answers, however, in this instance, it would be correct.

    I’m a small-l libertarian, and I realize that most commerce clause applications that allow federal control over state actions are typically excuses for expansions of federal regulatory schemes. However, this is certainly not the case when it comes to this latest situation.

  10. However, this is a case of pure out-and-out protectionism. States are going out of their way to protect and uphold the extensive middle-man regimes that their regulations helped create. They have enacted tax and regulatory schemes that unfairly favor in-state producers, while punishing those across the border. And they have waged a war on the consumers, for the consumers are the ones who pay for these extensive systems, via higher prices at the wine shop.

    If this case was about any other product, this would have been decided years ago. But because of the amount of money generated for each state because of their regulatory systems, they’ve clung dearly to this.

    It seems to me that the SC is actually going to make a ruling that is neither ‘activist’ nor outside of the bounds of the constitution.

  11. Evan Williams: the problem is that the “dormant Commerce Clause” is not found in the Constitution itself. It is purely the creature of judicial precedent. Giving Congress power to regulate something says nothing–literallly nothing–about the states’ power to regulate it in the absence of Congrssional legislation. It sould be Congress, not the Court, that outlaws state protectonism.

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