Amicus Curiae Brief — Tennessee Wine and Spirits Retailers Association, Petitioner v. Russell F. Thomas, Executive Director of the Tennessee Alcoholic Beverage Commission, et al.

No. 18-96

IN THE

Supreme Court of the United States

TENNESSEE WINE AND SPIRITS RETAILERS

ASSOCIATION,

Petitioner,

v.

CLAYTON BYRD, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICI CURIAE OF THE NATIONAL

CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES, U.S.

CONFERENCE OF MAYORS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

AND INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONERS

LISA E. SORONEN

RICHARD A. SIMPSON

State and Local Legal

Center

444 N. Capitol St., N.W.

Suite 515

Washington, D.C. 20001

(202) 434-4845

lsoronen@sso.org

Tara L. Ward

Emily S. Hart

Wiley Rein LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

rsimpson@wileyrein.com

Executive Director

Counsel of Record

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ................................................................8

I. This Court should uphold the Tennessee

residency requirement for first-time liquor

licenses and reverse the Sixth Circuit’s

decision because the Twenty-first

Amendment provides States exceedingly

wide latitude to regulate the sale of alcohol. ...8

A. The Twenty-first Amendment defers to

the States as to how to regulate the

importation and use of alcohol within

their borders. ...............................................8

B. The dormant Commerce Clause places

minimal, if any, limitations on the right

of States under the Twenty-first

Amendment to regulate alcohol. .................9

II. At a minimum, the Court should uphold

State regulations dealing with alcohol so

long as there is any rational basis on which

the State could have determined that the

regulation serves a legitimate state

interest. ...........................................................11

ii

TABLE OF CONTENTS

(continued)

Page

A. The Court should apply a deferential

and lenient rational basis test that

balances dormant Commerce Clause

concerns with the broad power afforded

to States through the Twenty-first

Amendment................................................11

B. States and local governments need broad

discretion to develop specialized alcohol

regulatory schemes because they have a

distinct special interest. ............................16

III. States and local governments’ ability to

effectively regulate alcohol has broad

implications for other substances that also

have a special local impact. ............................19

CONCLUSION ..........................................................21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bacchus Imports, Ltd. v. Dias,

468 U.S. 263 (1984) ............................................. 13

Brown-Forman Distillers Corp., v. New

York State Liquor Auth.,

476 U.S. 573 (1986) ............................................. 13

Byrd v. Tennessee Wine & Spirits

Retailers Ass’n,

883 F.3d 608 (6th Cir. 2018) ............................... 15

Capital Cities Cable, Inc. v. Crisp,

467 U.S. 691 (1984) ..........................................8, 12

Granholm v. Heald,

544 U.S. 460 (2005) ...................................... passim

Healy v. Beer Inst.,

491 U.S. 324 (1989) ............................................. 13

Indianapolis Brewing Co. v. Liquor

Control Comm’n of State of

Michigan,

305 U.S. 391 (1939) ............................................. 10

New York v. United States,

505 U.S. 144 (1992) ............................................. 13

North Dakota v. United States,

495 U.S. 423 (1990) ..........................................9, 14

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

S. Wine & Spirits of Am., Inc. v. Div. of

Alcohol & Tobacco Control,

731 F.3d 799 (8th Cir. 2013) ................................ 13

State Bd. of Equalization of Cal. v.

Young’s Mkt. Co.,

299 U.S. 59 (1936) ..................................4, 8, 10, 11

Whalen v. Roe,

429 U.S. 589 (1977) ............................................. 20

Other Authorities

American Bar Assoc. Board of

Governors, Task Force on the Model

Definition of the Practice of Law,

Appendix A, State Definitions of the

Practice of Law (Aug. 8, 2018) ........................... 17

CDC, Excessive Drinking is Draining

the U.S. Economy (July 13, 2018) ....................... 17

Daniel I. Rees & Kevin T. Schnepel,

College Football Games and Crime,

Cornell University ILR School (Jan.

2008) .................................................................... 16

v

TABLE OF AUTHORITIES

(continued)

Page(s)

NAHB, National Survey of Statutory

Authority and Practical

Considerations for the

Implementation of Inclusionary

Zoning Ordinances (June 2007) .......................... 17

National Conference of State

Legislatures, 2018 Preschool-3rd

Grade Education Legislation Tracker

(May 22, 2018) ..................................................... 16

National Conference of State

Legislatures, Prescribing Policies:

States Confront Opioid Overdose

Epidemic (Oct. 31, 2018) ..................................... 20

National Conference of State

Legislatures, State Medical

Marijuana Laws (Nov. 8, 2018) .......................... 19

Sasha Savitsky, Country Music’s

Drinking Problem: Alcohol-Related

Incidents at Concerts Getting Out of

Hand?, Fox News Network (Aug. 8,

2014) .................................................................... 16

U.S. Dept. of Transportation, National

Highway Traffic Safety

Administration, Alcohol-Impaired

Driving, 7 (Nov. 2018) ......................................... 18

1

INTEREST OF AMICI CURIAE*

The National Conference of State Legislatures

(NCSL) is a bipartisan organization that serves the

legislators and staffs of the Nation’s 50 States, its

Commonwealths, and Territories. NCSL provides

research, technical assistance, and opportunities for

policymakers to exchange ideas on the most pressing

state issues. NCSL advocates for the interests of

state governments before Congress and federal

agencies, and regularly submits amicus briefs to this

Court in cases, like this one, that raise issues of vital

state concern.

The National Association of Counties (“NACo”)

is the only national organization that represents

county governments in the United States. Founded

in 1935, NACo provides essential services to the

Nation’s 3,069 counties through advocacy, education,

and research.

The National League of Cities (NLC) is

dedicated to helping city leaders build better

communities. NLC is a resource and advocate for

19,000 cities, towns and villages, representing more

than 218 million Americans.

The U.S. Conference of Mayors (“USCM”),

founded in 1932, is the official nonpartisan

organization of all United States cities with a

population of more than 30,000 people, which

includes over 1,200 cities at present. Each city is

* No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici curiae, their members, or their counsel

made a monetary contribution to its preparation or submission.

The parties have consented to the filing of this brief and such

consents have been docketed.

2

represented in the USCM by its chief elected official,

the mayor.

The International City/County Management

Association (“ICMA”) is a nonprofit professional and

educational organization of over 9,000 appointed

chief executives and assistants serving cities,

counties, towns, and regional entities.

ICMA’s

mission is to create excellence in local governance by

advocating and developing the professional

management of local governments throughout the

world.

The

International

Municipal

Lawyers

Association (IMLA) has been an advocate and

resource for local government attorneys since 1935.

Owned solely by its more than 2,500 members, IMLA

serves as an international clearinghouse for legal

information and cooperation on municipal legal

matters.

IMLA’s mission is to advance the

responsible development of municipal law through

education and advocacy by providing the collective

viewpoint of local governments around the country

on legal issues before the Supreme Court of the

United States, the United States Courts of Appeals,

and state supreme and appellate courts.

State and local governments have broad

responsibilities for regulating private conduct within

their respective jurisdictions. That responsibility

includes repealing and modifying laws over time as

additional information becomes known and as the

views of citizens evolve and change. State and local

officials are responsible to the citizens who elected

them for the decisions they make regarding how to

regulate private conduct.

The decision below invalidated a state law

regulating the sale of alcohol on the ground that the

3

law violates the dormant Commerce Clause. In

doing so, that decision failed to give appropriate

weight to the extraordinarily broad discretion given

to the States by the Twenty-first Amendment to

regulate sale and use of alcohol within their borders.

This Court’s decision will have a substantial impact

on the rights and responsibilities of state and local

governments to regulate conduct within their

jurisdictions.

4

SUMMARY OF ARGUMENT

This Court’s analysis of the Twenty-first

Amendment makes clear that States enjoy broad

power to regulate the sale and use of alcohol within

their borders. Early cases suggest that there are no

dormant Commerce Clause limitations on that

power. See State Bd. of Equalization of Cal. v.

Young’s Mkt. Co., 299 U.S. 59, 62 (1936). More

recent cases do not go that far but continue to

recognize that “[t]he 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.”

Granholm v. Heald, 544 U.S. 460, 484 (2005). It is

within this context that the Court should consider

Tennessee’s

two-year

durational

residency

requirement for retail alcohol sales licenses at issue

in this case.

The text and history of the Twenty-first

Amendment demonstrate that States should be free

to regulate alcohol with minimal, if any, limitations

imposed by the dormant Commerce Clause. For the

reasons explained by the dissents in Granholm, there

is a compelling argument that state regulation

should be entirely exempt from dormant Commerce

Clause review. The Court need not go nearly that

far, however, to recognize that Tennessee’s two-year

residency requirement for a retail license falls well

within the authority of the States to regulate alcohol.

Application of the dormant Commerce Clause

and Twenty-first Amendment is often presented as a

binary choice: either the non-discrimination principle

of the dormant Commerce Clause applies with full

force to State regulation of alcohol or there are no

5

dormant Commerce Clause limitations whatsoever

on state laws regulating alcohol.

Amici propose, without revisiting Granholm,

that the Court can and should reconcile these

divergent approaches by adopting an exceedingly

deferential standard for dormant Commerce Clause

review of state alcohol regulation. In particular, a

State regulation of alcohol should be upheld if there

is any possible rational basis for the regulation based

on a legitimate State interest in controlling the sale

and use of alcohol within the State. The dormant

Commerce Clause should be held to invalidate a

State regulation of alcohol only if there is no rational

basis for the regulation other than discrimination

against out-of-state economic interests. By adopting

this kind of rational basis test, the Court would

honor the special power and discretion afforded to

State regulation of alcohol under the Twenty-first

Amendment, while at the same time preserving the

core purpose of the dormant Commerce Clause by

prohibiting State regulations that could have no

purpose other than blatant discrimination against

out-of-state economic interests.

The proposed test harmonizes the Court’s

cases and important principles at stake by affording

the States exceedingly broad discretion to regulate

alcohol within their own borders, but at the same

time prohibiting States from attempting to regulate

out-of-state economic activity (as, for example, with

price-affirmation statutes) and from enacting

regulations that could have no purpose other than to

benefit in-state economic interests at the expense of

out-of-state economic interests. The proposed test

also recognizes that the Twenty-first Amendment

6

was intended to limit severely the Commerce Clause

limitations on state power to regulate alcohol, but

does not immunize or limit state laws from review

under other provisions of the Constitution, such as

the Equal Protection Clause of the Fourteenth

Amendment.

The Sixth Circuit in the decision below read

Granholm as requiring application of the nondiscrimination principle in neutral fashion, with the

courts scrutinizing the intent and effect of State

regulation of alcohol as though it were an ordinary

article of commerce. But if that were the correct

approach, the legitimacy of the three-tier system

itself would be in question, since that system

certainly has a negative impact on out-of-state

economic interests. Instead, courts should review

State regulation of alcohol with a heavy thumb on

the scale in favor of upholding the regulation,

striking it down only if there could be no rational

basis on which the regulation serves a legitimate

interest in regulating alcohol and instead could have

no purpose other than discrimination against out-ofstate economic interests. Under that standard, the

Tennessee two-year residency requirement easily

passes muster.

Affording that kind of deference to State

regulation of alcohol makes sense because States and

local governments bear the brunt and cost of

problems associated with alcohol sales and use.

Those problems include, for example, vandalism,

looting, and other damage due to drunk-anddisorderly behavior following sporting and music

events where alcohol consumption is high. Abuse of

alcohol also impacts workplace productivity, health

7

care expenses, law enforcement and criminal justice

expenses, and motor vehicle crashes, including drunk

driving. The impact of these problems varies widely

from State to State, as do local conditions and views.

States and municipalities need regulatory flexibility

to address these critical issues at a local level. The

proposed rational basis test ensures that States have

the discretion they need to deal with these issues.

The practical implications of the decision

below extend well beyond the production,

manufacture, and retail sale of alcohol. For example,

States and local governments face difficult questions

regarding the level and nature of regulation

necessary to curb opioid and marijuana abuse.

States and local governments should be given

deference as they struggle with these local problems.

A decision invalidating Tennessee’s two-year

residency requirement for a retail alcohol sales

license, notwithstanding the special power accorded

the States by the Twenty-first Amendment, would

call into serious question States’ ability to deal

creatively with other serious, localized issues not

afforded special attention under the Constitution.

8

ARGUMENT

I.

This Court should uphold the Tennessee

residency requirement for first-time liquor

licenses and reverse the Sixth Circuit’s

decision because the Twenty-first Amendment

provides States exceedingly wide latitude to

regulate the sale of alcohol.

A.

The Twenty-first Amendment defers to

the States as to how to regulate the

importation and use of alcohol within

their borders.

This Court’s analysis of the Twenty-first

Amendment makes clear that “States enjoy broad

power . . . to regulate the importation and use of

intoxicating liquor within their borders.” Capital

Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984).

Reviewing Section Two of the Twenty-first

Amendment for the first time, the Court held that

“the words used are apt to confer upon the state the

power to forbid all importations which do not comply

with the conditions which it prescribes.” Young’s

Mkt. Co., 299 U.S. at 62. In that regard, the Court

recognized that limiting “this broad command” to

dictate that States must allow “imported liquors [to]

compete with the domestic on equal terms” would

“involve not a construction of the amendment, but a

rewriting of it.” Id.

Decades later, the Court still recognizes that

“[t]he 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.” Granholm,

9

544 U.S. at 484. For that reason, “within the area of

its jurisdiction, the State has ‘virtually complete

control’ over the importation and sale of liquor and

the structure of the liquor distribution system.”

North Dakota v. United States, 495 U.S. 423, 431

(1990).

It is within this context—the broad power

afforded to States by the Twenty-first Amendment to

regulate alcohol within their borders—that the Court

should consider the constitutionality of the

Tennessee durational-residency statute at issue.

B.

The dormant Commerce Clause places

minimal, if any, limitations on the right

of States under the Twenty-first

Amendment to regulate alcohol.

The text and history of the Twenty-first

Amendment demonstrate that States should be free

to regulate alcohol with minimal, if any, limitations

imposed by the dormant Commerce Clause.

In Granholm, the Court reasoned that because

the Twenty-first Amendment “does not abrogate

Congress’ Commerce Clause powers with regard to

liquor,” “state regulation of alcohol is limited by the

nondiscrimination principle of the Commerce

Clause.” Granholm, 544 U.S. at 487. For that

reason, the majority in Granholm held that the

States’ broad regulatory power under the Twentyfirst Amendment did not extend to “allow States to

ban, or severely limit, the direct shipment of out-ofstate wine while simultaneously authorizing direct

shipment by in-state producers.” Id. at 493.

However, as the dissents in Granholm

emphasized, alcohol is not “an ordinary article of

10

commerce.” Id. at 494 (Stevens, J., dissenting); id. at

525 (Thomas, J., dissenting).

To the contrary,

alcohol is the subject of a specific constitutional

amendment giving the States sweeping regulatory

power, so sweeping that it is reasonably read to

render State regulation of alcohol immune from

dormant Commerce Clause review. See id. at 525

(“[T]he Twenty-first Amendment likewise insulates

state liquor laws from negative Commerce Clause

scrutiny.”).

The dissents in Granholm cited the Court’s

early cases interpreting the scope of the Twenty-first

Amendment, which set forth States’ “right to

discriminate in its regulation of out-of-state alcohol.”

Id. at 495 (Stevens, J., dissenting). Notably, the

Court in State Board of Equalization of California v.

Young’s Market Company characterized intervention

into States’ liquor regulatory rights as “involv[ing]

not a construction of the amendment, but a rewriting

of it.” Young’s Mkt. Co., 299 U.S. at 62. A few years

later, the Court concluded that “[t]he right of a state

to prohibit or regulate the importation of intoxicating

liquor is not limited by the commerce clause.”

Indianapolis Brewing Co. v. Liquor Control Comm’n

of State of Michigan, 305 U.S. 391, 394 (1939). The

Court’s early analyses of the Twenty-first

Amendment, close in time to the amendment’s

passage, were best positioned to hit on the

amendment’s intended scope and purpose.

Considering the broad reach of the Twentyfirst Amendment and the Court’s original

interpretation of it, there is a compelling argument

that the dissents in Granholm are correct in

asserting that state regulation of alcohol should be

11

entirely exempt from dormant Commerce Clause

review.

II.

At a minimum, the Court should uphold State

regulations dealing with alcohol so long as

there is any rational basis on which the State

could have determined that the regulation

serves a legitimate state interest.

A.

The Court should apply a deferential

and lenient rational basis test that

balances dormant Commerce Clause

concerns with the broad power afforded

to States through the Twenty-first

Amendment.

Although there are compelling arguments for

overturning Granholm, the Court need not go nearly

that far to recognize that Tennessee’s two-year

residency requirement for an initial retail license, at

issue in this case, falls well within the authority of

the States to regulate alcohol.

Application of the dormant Commerce Clause

and the Twenty-first Amendment is often presented

as a binary choice. On one hand, some cases suggest

that the dormant Commerce Clause’s nondiscrimination principle applies with full force to

State regulation of alcohol, at least beyond the

unquestioned right of the States to prohibit sales of

alcohol altogether or to limit their sale to state stores

or the three-tier system. See, e.g., Granholm, 544

U.S. at 472. In contrast, other cases suggest that

there are no dormant Commerce Clause limitations

whatsoever on state laws regulating alcohol. See,

e.g., Young’s Mkt. Co., 299 U.S. at 62.

12

Amici propose, without revisiting the debate in

Granholm, that the Court should recognize that any

dormant Commerce Clause review of state alcohol

regulation should be exceeding deferential.

In

particular, the Court should apply a lenient rational

basis test when reviewing the permissibility of State

regulation of alcohol. Under that approach, a State

regulation of alcohol should be upheld if there is any

possible rational basis for the regulation other than

discrimination

against

out-of-state

economic

interests. The Court should not look behind a State

regulation to make an independent judgment about

its primary intent, purpose, or effectiveness; if there

is any rational basis for the regulation, it should be

upheld.

By adopting this kind of rational basis test,

the Court would honor the special power and

discretion afforded to State regulation of alcohol

under the Twenty-first Amendment, while at the

same time preserving the core purpose of the

dormant Commerce Clause by prohibiting State

regulations that could have no purpose other than

blatant discrimination against out-of-state economic

interests. The test harmonizes the principle that

although the Twenty-first Amendment “does not

abrogate Congress’ Commerce Clause powers with

regard to liquor,” Granholm, 544 U.S. at 487, the

amendment “created an exception to the normal

operation of the Commerce Clause.” Capital Cities

Cable, Inc., 467 U.S. at 712.

Also relevant here, apart from the Twentyfirst Amendment itself, is the general principle that

Congress cannot dictate to States how they must

regulate private conduct within their jurisdictions.

13

Congress has broad powers to regulate private

conduct itself and to preempt a field, but may not

direct States as to how they must regulate private

conduct not otherwise preempted. See New York v.

United States, 505 U.S. 144, 162 (1992) (“While

Congress has substantial powers to govern the

Nation directly, including in areas of intimate

concern to the States, the Constitution has never

been understood to confer upon Congress the ability

to require the States to govern according to Congress’

instructions.”). Where, as here, Congress has not

acted to preempt the field, States should be and are

given substantial deference as to how to govern.

Using Amici’s proposed rational basis test, the

Court would differentiate between a purely

“protectionist tax exemption” with no purpose other

than to economically benefit in-state producers,

wholesalers, and retailers, and the legitimate

“regulation of the three-tier distribution system.”

See S. Wine & Spirits of Am., Inc. v. Div. of Alcohol &

Tobacco Control, 731 F.3d 799, 807 (8th Cir. 2013)

(citing Bacchus Imports, Ltd. v. Dias, 468 U.S. 263

(1984)); Bacchus, 468 U.S. at 276 (“State laws that

constitute mere economic protectionism are therefore

not entitled to the same deference as laws enacted to

combat the perceived evils of an unrestricted traffic

in liquor.”).

This approach is not inconsistent with the

Court’s

decisions

regarding

price-affirmation

statutes requiring alcohol to be sold at prices at or

below those in neighboring states. See Healy v. Beer

Inst., 491 U.S. 324 (1989); Brown-Forman Distillers

Corp., v. New York State Liquor Auth., 476 U.S. 573

(1986); see also Brief for Petitioner at 40-41. A

14

lenient rational basis test recognizes that the

Twenty-first Amendment affords States sweeping

power to regulate alcohol within their own borders.

Price affirmation statutes, on the other hand, reflect

actions by States indirectly to regulate conduct in

other States, outside the purview of the Twenty-first

Amendment.

Furthermore, the Twenty-first Amendment

does not immunize or limit state laws from review

under provisions of the Constitution other than the

Commerce Clause, such as the Equal Protection

Clause of the Fourteenth Amendment. A minimal

rational basis test recognizes that the purpose of the

Twenty-first Amendment was to give States freedom

from what otherwise would be restrictions imposed

by the dormant Commerce Clause on their ability to

regulate in-state commerce with regard to alcohol.

The Twenty-first Amendment does not, however,

exist in a vacuum and so does not free States from

other constitutional limitations.

This Court has repeatedly held that “States

can mandate a three-tier distribution scheme in the

exercise of their authority under the Twenty-first

Amendment,” requiring separate licenses for

producers, wholesalers, and retailers, Granholm, 544

U.S. at 466, and that this system is “unquestionably

legitimate.” North Dakota, 495 U.S. at 432. No case

has questioned that conclusion, and rightly so.

Yet, the Sixth Circuit in the decision below

read Granholm as requiring application of the nondiscrimination principle in neutral fashion, with the

courts scrutinizing the intent and effect of State

regulation of alcohol as if it were an ordinary article

15

of commerce. If that were the correct approach, the

legitimacy of the three-tier system itself would be in

question, since that system certainly has a negative

impact on out-of-state economic interests.

The three-tier system is “unquestionably

legitimate” because when courts review State

regulations of alcohol they should do so with a heavy

thumb on the scale in favor of upholding the

regulation. So long as there is any rational basis

other than economic discrimination for the State

regulation, it should be upheld, even if a court might

strongly suspect that the real reason for the

regulation is economic discrimination. The States

are entitled to the widest possible discretion in

regulating alcohol.

Applying a rational basis test, Tennessee’s

two-year durational residency requirement to obtain

an initial retail liquor license is a legitimate use of

Tennessee’s

power

under

the

Twenty-first

Amendment. As Judge Sutton explained in his

dissent below, regulation of alcohol retailers is

“critical to serving [the] interests” of “responsible

consumption and orderly liquor markets” in

particular because retailers are the “final link in the

distribution chain.” See Byrd v. Tennessee Wine &

Spirits Retailers Ass’n, 883 F.3d 608, 633 (6th Cir.

2018) (Sutton, J, dissenting); see also Brief for

Petitioner at 47-51 (discussing public policy reasons

for two-year durational residency requirements for

individual license applicants, concluding that the

requirement “cannot be dismissed as mere economic

protectionism”).

16

B.

States and local governments need

broad discretion to develop specialized

alcohol regulatory schemes because they

have a distinct special interest.

States and local governments bear the brunt

and cost of problems associated with alcohol sales.

For example, vandalism, looting, and other damage

due to drunk-and-disorderly behavior have long

followed sporting and music events where alcohol

consumption is high. See, e.g., Daniel I. Rees &

Kevin T. Schnepel, College Football Games and

Crime, Cornell University ILR School (Jan. 2008),

available at http://digital commons.ilr.cornell.edu/

workingpapers/72/

(confirming

that

local

communities register dramatic increases in assaults,

vandalism, and arrests on game days); Sasha

Savitsky, Country Music’s Drinking Problem:

Alcohol-Related Incidents at Concerts Getting Out of

Hand?, Fox News Network (Aug. 8, 2014), available

at https://www.foxnews.com/entertainment/countrymusics-drinking-problem-alcohol-related-incidentsat-concerts-getting-out-of-hand (describing a country

music concert in Massachusetts in which 46 people

were treated for alcohol-related illnesses and 50

people were arrested, and a New Jersey concert in

which more than 100 people were arrested).

States and local governments are given broad

latitude to regulate issues that are local in nature.

Indeed, States and local governments are empowered

to address issues ranging from education and

taxation, to zoning ordinances and land use, to

attorney and medical professional licensing

differently, and have done so. See, e.g., National

Conference of State Legislatures, 2018 Preschool-3rd

17

Grade Education Legislation Tracker (May 22, 2018),

available

at

http://www.ncsl.org/research/

education/2018-preschool-3rd-grade-educationlegislation-tracker.aspx (showing State legislation

regarding P-3 education at the state level); NAHB,

National Survey of Statutory Authority and Practical

Considerations

for

the

Implementation

of

Inclusionary Zoning Ordinances (June 2007)

(capturing zoning ordinances across the States);

American Bar Assoc. Board of Governors, Task Force

on the Model Definition of the Practice of Law,

Appendix A, State Definitions of the Practice of Law

(Aug.

8,

2018),

available

at

https://www.americanbar.org/groups/professional_res

ponsibility/task_force_model_definition_practice_law/

(summarizing State approaches to law licensing).

States should certainly be afforded broad

latitude to tailor alcohol regulation on a local basis.

The Centers for Disease Control and Prevention

report that the cost of excessive alcohol use—costs

resulting from loss in workplace productivity, health

care expenses, law enforcement and criminal justice

expenses, and motor vehicle crashes—reached $249

billion in 2010, where two out of every five dollars

were paid by federal, state, and local governments.

And the cost to States varied widely. CDC, Excessive

Drinking is Draining the U.S. Economy (July 13,

2018), available at https://www.cdc.gov/features/

costsofdrinking/index.html (excessive alcohol use

costs ranged from $488 million in North Dakota to

$35 billion in California, with the District of

Columbia hosting the highest cost per person, and

New Mexico the highest cost per drink).

18

Of course, the stakes can be even higher.

According to the U.S. Department of Transportation,

drunk driving incidence differs dramatically across

the States.

See U.S. Dept. of Transportation,

National Highway Traffic Safety Administration,

Alcohol-Impaired Driving, 7 (Nov. 2018), available at

https://crashstats.nhtsa.dot.gov/Api/Public/ViewPubli

cation/812630 (reporting that in 2017, the number of

drunk driving fatalities ranged from 23 in the

District of Columbia and 44 in Vermont on the low

end, to 3,074 in California and 3,538 in Texas on the

high end; Tennessee had 962 drunk-driving-related

fatalities).

Amici’s proposed rational basis test gives

States and municipalities the regulatory flexibility

they need to address these critical issues at a local

level. At the same time, by not negating entirely the

dormant Commerce Clause, the proposed test

protects against regulations that manifestly have no

possible purpose other than to discriminate against

out-of-state economic interests.

Accordingly, to resolve this case, the Court

should ask whether Tennessee could have a rational

basis for concluding that a two-year durational

residency requirement serves a legitimate State

interest in regulating alcohol. The regulation should

be upheld unless it could have no purpose other than

discrimination

against

out-of-state

economic

interests. Under that test, the two-year durational

residency requirement easily passes muster and

should be upheld.

19

III.

States and local governments’ ability to

effectively regulate alcohol has broad

implications for other substances that also

have a special local impact.

Elevating the dormant Commerce Clause over

the Twenty-first Amendment in the context of

alcohol regulation would affect State and local

governments’ ability to legislate in other areas of

public concern. The Twenty-first Amendment grants

broad power to the States to regulate alcohol. If this

constitutional grant of power is read narrowly to

limit state flexibility to regulate alcohol, then States’

flexibility to regulate in other areas that are not

subject to specific constitutional grants of power, but

nonetheless concern localized, pressing problems,

could be severely limited.

For example, States and local governments are

currently grappling with the level and nature of

regulation necessary to curb opioid and marijuana

abuse. In doing so, States and local governments

weigh the medical benefits of opioid drugs with the

risk of addiction. Likewise, some States recognize

medical benefits of marijuana while others do not. In

acting in these areas, States and local governments

must strike difficult balances, all while respecting

(and not discriminating against) other States’

approaches to the same issues.

See National

Conference of State Legislatures, State Medical

Marijuana Laws (Nov. 8, 2018), available at

http://www.ncsl.org/research/health/state-medicalmarijuana-laws.aspx (summarizing state medical

marijuana program laws, including extent to which

dispensaries are allowed, out-of-state patients are

recognized, and retail sales are allowed); National

20

Prescribing

Policies: States Confront Opioid Overdose Epidemic

(Oct. 31, 2018), available at http://www.ncsl.org/

Conference

of

State

Legislatures,

research/health/prescribing-policies-states-confrontopioid-overdose-epidemic.aspx

(describing

state

prescribing policies, monitoring programs, and other

strategies); see also Whalen v. Roe, 429 U.S. 589, 603

n.30 (1977) (recognizing that States have “broad

police powers in regulating the administration of

drugs by the health professions.”). States and local

governments should be given deference as they

struggle with those local problems.

Of course, the Constitution does not bestow

additional power on (or otherwise explicitly reserve

regulatory power to) States and local governments to

manage these issues, as it does in the context of

alcohol. All the more reason the Court’s decision

here will have a broader impact on State regulation

of marijuana and opioids. A decision striking down

Tennessee’s two-year durational residency regulation

where the Twenty-first Amendment provides States

extraordinary power to legislate would call into

serious question States’ ability to deal creatively

with other serious, localized issues that are not

afforded special attention under the Constitution.

21

CONCLUSION

The Twenty-first Amendment affords States

exceedingly wide latitude and discretion to regulate

the sale of alcohol within their borders. Amici

propose that the Court accordingly adopt a

deferential rational basis test for dormant Commerce

Clause review of State regulation of alcohol, under

which a State regulation will be upheld so long as it

bears any rational relationship to a legitimate State

interest in controlling the sale and use of alcohol.

State regulation of alcohol violates the dormant

Commerce Clause only if the regulation could have

no purpose other than discrimination against out-ofstate economic interests.

Under that test,

Tennessee’s

two-year

durational

residency

requirement easily passes muster.

Respectfully submitted,

LISA E. SORONEN

RICHARD A. SIMPSON

State and Local Legal

Center

444 N. Capitol St., N.W.

Suite 515

Washington, D.C. 20001

(202) 434-4845

lsoronen@sso.org

Tara L. Ward

Emily S. Hart

Wiley Rein LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7000

rsimpson@wileyrein.com

Executive Director

Counsel of Record