The out-of-state retailers arguing the Commerce Clause allows them to ship alcohol across state borders on par with in-state retailers that have the same privilege filed for Supreme Court review of the 6th Circuit Lebamoff decision. We’ve got the brief for you.

I’m doing my best to draft headlines that tell you all you really need to know. Would that it were possible for this issue regarding the retail of alcohol, the Commerce Clause, and the 21st Amendment.

We have discussed the problems with the 6th Circuit’s reversal of a District Court’s decision to allow out-of-state alcohol retailers to ship alcohol to Michigan residents where that right was enjoyed by in-state liquor retailers. There was a petition to rehear the case en banc that got denied and the next logical step (the only real one left) is the petition for certiorari.

That happened. For now, Docket No. 20-47 consists solely of the plaintiffs’ request for SCOTUS to take up this important alcohol shipping case. As we reported during the denial of the petition for rehearing, there are several similar cases pending in other circuits and the case follows on the heels of the Tennessee Wine v. Byrd determination where Justice Gorsuch had prognosticated during oral arguments about the next case being the Amazon of liquor – a retailer based challenge to state restrictions on alcohol shipments favoring in-state retailers vs. out-of-state retailers – which is exactly what this case is.

You can read the full petition by the alcohol sellers here. The opposing parties filed today to waive their right to respond – which didn’t go so well for Texas in the Wal-Mart petition for cert over restrictions on alcohol retailer rights in Texas as the same gambit failed there and the Supreme Court has now asked Texas to respond to Wal-Mart’s petition… but more about that in another posting.

Here, the arguments made in the request to have the Supreme Court review these alcohol shipping issues is styled as a straightforward ask:

“Whether a state liquor law that allows in-state retailers to ship wine directly to consumers but prohibits out-of-state retailers from doing so, is invalid under the nondiscrimination principle of the Commerce Clause or is a valid exercise of the state’s Twenty-first Amendment authority to regulate the sale of alcoholic beverages within its borders.”

The brief argues that a law prohibiting out-of-state alcohol retailers from shipping under those circumstances is prohibited by the Commerce Clause. The brief focuses on two main points – the Commerce Clause issues and the fact that the matter is important so even if no circuit split exists yet, the Court should take up the case also asserting that tertiary issues about interpreting Granholm and the States’ authority under the Twenty-First Amendment for liquor licensing and alcohol regulation are presently split in several circuits adding to the need to consider the matter. The brief raises an interesting argument about the timeliness and concerns of the State restrictions during the COVID-19 pandemic – an argument not addressed below – given the increased need and demand for online shipping in a pandemic-stricken society.

Hopefully the matter is taken up – starting with the Court ordering the defendants to respond to the petition.