Here’s full audio of the 5th Circuit’s Wal-Mart v. Texas oral argument over Texas’s ban on publicly traded companies holding certain liquor licenses.
We’ve previously discussed and uploaded the briefs for you in this case Wal-Mart is brining against the Texas Alcoholic Beverage Commission (both links to our pieces covering the case with the briefs).
Briefly, Wal-Mart challenged and won a district court case against the Texas Alcoholic Beverage Commission arguing certain Texas alcoholic beverage licensing laws violated the Commerce Clause by restricting the types of liquor licenses publicly traded companies could hold. The Texas statute banned public corporations from obtaining liquor burdened interstate commerce through a discriminatory impact (which was intended by the legislature) of keeping out-of-state companies like Wal-Mart from holding certain liquor licenses.
Do not underestimate the beauty of this case. The 50 page district court opinion (linked in the prior article above) provides a roadmap to honest challenges to nonsensical liquor restrictions. The suit is an exemplar, evidencing the fact that forthright litigation with expert testimony and thoughtful development of the record virtually guarantees success in striking down state liquor statutes that run afoul of constitutional principles as states generally adopt legislation based on faulty or missing reasoning and knee-jerk reactions and “just-so” theories about how people behave or the way things work without supporting evidence.
in challenging state liquor statutes on constitutional grounds, losers generally rush in with a preliminary injunction or some other tactic to elicit a quick right to appeal and press a constitutional issue without the supporting factual record that can support claims that a law lacks a rational basis or fails to accomplish its stated goals, or is not narrowly tailored, or doesn’t achieve a legitimate State interest.
Winners tend to follow the steps of this case in developing a significant factual record through evidence and testimony to prove their points about the statute’s effects as this keeps courts from playing the hypothetical game of considering state arguments about what the statute is supposed to accomplish and granting that it “makes sense.”
For instance, would you believe that at a certain point, increased liquor advertising doesn’t increase consumption, but does change and impact the type of alcoholic beverages purchased by consumers? True, and borne out by evidence. But, without an expert’s testimony and an admission of the evidence into the record, a judge can look at a countervailing argument made by the state that more advertising creates more sales and simply say “i agree” your reasoning makes sense. So challenges to bans on advertising with properly developed factual testimony from experts go further and can win.
Factual record aside, the problems replete with treating one substance as something apart from the constitution were on full display recently in the 5th Circuit’s oral argument in this case. Some of the issues addressed will likely get resolved or clarified by the anticipated Byrd decision, but others remain.
You can listen to the full audio here: