Discriminating against interstate commerce.

Granholm v. Heald, the wine case I briefly mentioned yesterday, would have been a very easy negative Commerce Clause case -- the state laws discriminated against interstate commerce -- but it was made difficult by the 21st Amendment. Writing for the majority, Justice Kennedy says:

The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.

Dissenting, Justice Stevens, joined by O'Connor, looks at an early case interpreted the amendment (one that the majority regards as superseded by later cases):

The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State’s right to discriminate in its regulation of out-of-state alcohol could not have been clearer:

“The plaintiffs ask us to limit [§2’s] broad command. They request us to construe the Amendment as saying, in effect: The State may prohibit the importation of intoxicating liquors provided it prohibits the manufacture and sale within its borders; but if it permits such manufacture and sale, it must let imported liquors compete with the domestic on equal terms. To say that, would involve not a construction of the Amendment, but a rewriting of it… . Can it be doubted that a State might establish a state monopoly of the manufacture and sale of beer, and either prohibit all competing importations, or discourage importation by laying a heavy impost, or channelize desired importations by confining them to a single consignee?” State Bd. of Equalization of Cal. v. Young’s Market Co., 299 U.S. 59, 62—63 (1936).

Justice Thomas also dissents, and he is joined by the Chief Justice, as well as Stevens and O'Connor. Thomas stresses a federal statute:

The Webb-Kenyon Act immunizes from negative Commerce Clause review the state liquor laws that the Court holds are unconstitutional. The Act “prohibit[s]” any “shipment or transportation” of alcoholic beverages “into any State” when those beverages are “intended, by any person interested therein, to be received, possessed, sold, or in any manner used … in violation of any law of such State.”

The Court has long held that Congress has the power to authorize the states to discriminate against interstate commerce. That is, there is no negative effect to the Commerce Clause if Congress has used its commerce power to permit the states to act. Thus, the dissenters would resolve the question purely on the statutory ground. But Thomas also goes on to address the 21st Amendment and finds that it too authorizes the states to discriminate against interstate commerce:

Though its terms are broader than the Webb-Kenyon Act, the Twenty-first Amendment also parallels the Act’s structure. In particular, the Twenty-first Amendment provides that any importation into a State contrary to state law violates the Constitution, just as the Webb-Kenyon Act provides that any such importation contrary to state law violates federal law. Its use of those same terms of art shows that just as the Webb-Kenyon Act repealed liquor’s negative Commerce Clause immunity, the Twenty-first Amendment likewise insulates state liquor laws from negative Commerce Clause scrutiny.

There is a great deal of disagreement about the meaning of the cases interpreting the 21st Amendment, and I won't try your patience by paraphrasing these arguments.

I must confess to being at a loss to think of a way to make the inner workings of this case interesting. It would be fun to draw some big conclusion about how Justice Scalia is different from Justice Thomas. Justice Thomas finds decentralized lawmaking especially appealing while Justice Scalia sees nondiscrimination as a central principle? I'm not seeing enough in this case to justify any grandiose statements like that.