Amicus Curiae Brief — Granholm v. Heald

C3) (i (i) Th rene Coun, 05.)

Nos. - 1116, 03-1720, 03-1274

| OFFIC L OF THE CLERK

IN THE

Supreme Court of the United States

JENNIFER M. GRANHOLM, Governor, ef al..

Petitioners.

Vv.

ELEANOR HEALD, ef al.,

Respondents.

MICHIGAN BEER & WINE WHOLESALERS ASSOCIATION,

Petitioner,

Vv.

ELEANOR HEALD, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE NATIONAL ALCOHOL BEVERAGE

CONTROL ASSOCIATION AND THE NATIONAL

CONFERENCE OF STATE LIQUOR

ADMINISTRATORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

JAMES M. GOLDBERG *

GOLDBERG & ASSOCIATES, PLLC

Suite 1000

1101 Connecticut Avenue, N.W.

Washington, DC 20036

202-628-2929

* Counsel of Record Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. — (202) 7 789-0096 — WASHINGTON, D.C. 20001

v7] TA, % & 3 Pe iP ”

ONS! Cl ee ei det | fs

QUESTION PRESENTED

Does a State’s regulatory scheme that permits in-state

wineries directly to ship alcohol to consumers but restricts the

ability of out-of-state wineries to do so violate the dormant

Commerce Clause in light of Sec. 2 of the 21st Amendment?

(i)

TABLE OF CONTENTS

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INTEREST OF THE AMICT CURIAE ........ccccccccceeeeeeees

SUMMARY OF ARGUMENT ................ccccccccceeeeeeeeeees

ARGUMENT....

CONCLUSION

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TABLE OF AUTHORITIES

CASES Page

44 Liquormart, Inc. v. Rhode Island, 517 U.S.

Te 9

Bacchus Imports v. Dias, 468 U.S. 263 (1984)..... )

California Retail Liquor Dealers Association v.

Midcal Aluminum, 445 U.S. 97 (1980).............. x

Clark Distilling Co. v. Western Maryland Ry.

Cis ee ee Se Ge icteininiiens 6, 12

Craig v. Boren, 429 U.S. 190 (1976)............0....004. 8

Dugan v. Bridges, \6 F.Supp. 694 (D.N.H. 1936)... 12, 13

In re Rahrer, 140 U.S. 545 (1891) 0.00... 5

Leisy v. Hardin, 135 U.S. 100 (1890).....0............ 5

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

PETE ccsecttessenpenteneseceaseiainteitiattiladdnadiabailiieiesildaatsiatiniinatalaesls 10

Pete's Brewing Co., et al. v. Whitehead, 19

F.Supp.2d 1004 (W.D. Mo. 1998)...000000........0.. 10

Prudential Ins. Co. v. Benjamin, 328 U.S. 408

Ia crcrnnenenicinnaniiniennmassiininsiedsttinlisiatiiiiiaiaiiatiatadl 7

Rhodes v. lowa, 170 U.S. 412 (1898). ............000.... 5

South Dakota v. Dole, 483 U.S. 203 (1987).......... 4

The License Cases, 46 U.S. 5 How. 504 (1847)... 4

Vance v. WA. Vandercook Company, 170 U.S.

SD Ce censnsensnsnsnesnsnnumnsmneneptmenieninnmnnnn 6

Ziffrin, Inc. v. Reeves, 308 U.S.132 (1939) ........... 8

CONSTITUTION

USComst. Ast. £, Bas. GB, GB. F ccccccccecccsscccccsesesess 5

STATUTES

Act of August 8, 1890, c. 728, 26 Stat. 313........... 5

Act of Mar. 1, 1913, c. 90, 37 Stat. 699 00. 6

Act of Aug. 27, 1935, c. 740 §202(b), 49 Stat.

UO carevocemmentemennidnnnuaniiesiiiiaeaaiaiaanmaeionnatl 7

OTHER MATERIAL

49 Cong. Rec. (daily ed. February 8, 1913) .......... 6

IN THE

Supreme Court of the Anited States

Nos. 03-1116, 03-1120, 03-1274

JENNIFER M. GRANHOLM, Governor, ef al..

Petitioners,

Vv.

ELEANOR HEALD, ef al.

Respondents.

MICHIGAN BEER & WINE WHOLESALERS ASSOCIATION,

Petitioner,

Vv.

ELEANOR HEALD, ef al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE NATIONAL ALCOHOL BEVERAGE

CONTROL ASSOCIATION AND THE NATIONAL

CONFERENCE OF STATE LIQUOR

ADMINISTRATORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

Pursuant to Rule 37 of the Rules of this Court, the National

Alcohol Beverage Control Association, Inc. (NABCA) and

the National Conference of State Liquor Administrators

(NCSLA), by their attorney, file this brief as amici curiae in

5 °

support of the position of the Petitioners and respectfully urge

this Court to overturn the judgment of the United States Court

of Appeals for the Sixth Circuit in Heald v. Engler, 342 F.3d

517 (6th Cir. 2003).' This brief is filed with the consent of

the parties. evidence of which is submitted with this brief.

INTEREST OF THE AMICI CURIAE

NABCA is a Wyoming non-profit corporation whose

members are the 19 jurisdictions” that directly control the

distribution and sale of alcohol beverages through the

Operation of state-owned wholesale and, in some cases,

retail outlets: these jurisdictions also regulate the sale of

alcohol beverages by private outlets such as package stores,

restaurants and taverns. NCSLA is an_ unincorporated

membership association whose members are the remaining

jurisdictions that simply regulate private sellers of alcohol

beverages. Some jurisdictions are members of both

organizations. Taken together, NABCA and NCSLA repre-

sent the state. and, in some cases, local government agencies

charged with regulating the distribution and sale of alcohol

' Counsel of record for the amici curiae was the sole author of this

brief. No person or organization other than the amici curiae has made a

monetary contribution to the preparation or submission of this brief.

* NABCA’s members include the Alabama Alcoholic Beverage

Control! Board. Idaho State Liquor Dispensary, lowa Alcoholic Beverages

Division, Maine State Liquor & Lottery Commission, Michigan Liquor

Control Commission, Mississippi State Tax Commission, Montana

Department of Revenue Liquor Division, Montgomery County (MD)

Department of Liquor Control, New Hampshire State Liquor

Commission. North Carolina Alcoholic Beverage Control Commission,

North Carolina Association of ABC Boards, Ohio Division of Liquor

Control, Oregon Liquor Control Commission, Pennsylvania Liquor

Control Board, Utah Department of Alcoholic Beverage Control, Vermont

Department of Liquor Control, Virginia Alcoholic Beverage Control

Board, Washington State Liquor Control Board, West Virginia Alcoholic

Beverage Control Administration and Wyoming Department of Revenue

Liquor Division.

3

beverages in all 50 states. Several of these agencies are or

have been defendants in litigation similar to the instant case

and all would have their ability to regulate alcohol beverages

significantly irapacted by the decision in this matter.

SUMMARY OF ARGUMENT

The plain language as well as the judicial interpretation of

the Twenty-First Amendment clearly supports the validity of

the state laws that are under attack herein. Further, a state’s

regulation of the interstate shipment of alcohol beverages

directly to its consumers is an inherent part of a state’s

structure of its alcohol beverage industry, a function that

clearly falls within the so-called “core” powers of the

Twenty-First Amendment and that also acts to immunize a

state’s action from Commerce Clause scrutiny.

Alternatively, even if one accepts the premise that a state’s

regulation is precluded by the Commerce Clause, one must

consider the impact of the Webb-Kenyon Act, a federal

statute that both pre-dates and post-dates the adoption of the

Twenty-First Amendment and that serves to strip alcohol

beverages of their normal interstate commerce protection,

thus allowing a state to impose the kind of regulation on the

importation of alcohol beverages that is at issue here.

ARGUMENT

I. MICHIGAN’S APPROACH TO REGULATION

IS PERMISSABLE UNDER THE PLAIN LANG-

UAGE AND JUDICIAL INTERPRETATION OF

THE TWENTY-FIRST AMENDMENT

Drink is in itself a creature of God, and to be received with

thankfulness.

Increase Mather, 1673

4

The thing has arrived to such a height, that we are actually

threatened with becoming a nation of drunkards.

Greene and Delaware Moral Society, 1815

The production, sale and regulation of alcohol beverages

have long been a source of controversy as well a fertile area

for litigation within the United States. In the early days of

the nation, the new federal government sparked an agrarian

uprising—known as the “Whiskey Rebellion’—when it

sought to impose, for the first time, a federal excise tax

on distilled spirits, in part to fund the debt of the

Revolutionary War.

While the federal government thus staked a “claim” to its

right to tax alcohol beverages, it generally did not seek to

impose other restrictions on its production and distribution.

That responsibility fell to the individual states, which sought

to exercise control over the product's distribution by licensing

sellers, an action that was upheld by this Court in The License

Cases, 46 U.S. 5 How. 504 (1847). It should be noted that,

even today, the federal government's regulation of alc: -hol

beverages outside of the tax area is limited to scrutiny of

certain trade practices. The “imposition” of a national

minimum drinking age was not done directly, but rather as an

exercise of Congress’ spending power. In fact, this Court

questioned whether Congress even possessed the power to

directly impose a national minimum drinking age. South

Dakota v. Dole, 483 U.S. 203, 212 (1987).

A strong anti-alcohol movement emerged in the latter half

of the nineteenth century. Several states attempted to legislate

a totally “dry” environment in which the sale of alcohol was

prohibited, the National Prohibition Party was formed in an

effort to impact federal elections, and such groups as the

Women’s Christian Temperance Union and the Anti-Saloon

League were born out of a concern about the adverse effect

that excessive consumption of alcohol beverages was having

on the country’s moral fabric.

5

Some states opted for virtually unrestricted commerce in

alcohol beverages while others opted to be “dry,” that is, they

prohibited virtually all traffic in alcohol beverages. Still

others adopted “local option” statutes, giving cities, towns

and municipalities the authority to determine whether to

allow the sale and distribution of alcohol beverages.

Although Congress generally adopted a “hands-off” policy

with regard to alcohol beverage regulation, except for federal

taxation of the product, state regulation of trade in alcohol

beverages soon ran afoul of the Constitution’s grant to

Congress—and Congress alone—of the authority to regulate

commerce among the states. U.S.Const. Art. L., Sec. 8, cl. 3.

Expressly overruling a 50-year-old precedent, this Court

declared invalid an lowa law regulating the sale of alcohol

beverages which had been shipped from outside the state.

Leisy v. Hardin, 135 U.S. 100 (1890).

Reacting to Leisy, Congress passed the so-called “Original

Packages Act,” also known as the Wilson Act, which

declared that, upon arrival into a state, alcohol beverages

became subject to the regulatory scheme of the state, in the

same manner as alcohol beverages produced within the state.

Act of August 8, 1890, c. 728, 26 Stat. 313 (current version at

27 U.S.C. §121).

Passage of the‘ Wilson Act, however, did not totally clarify

the ability of states to regulate trade in alcohol beverages

within their borders. Although the constitutionality of the

Wilson Act was upheld, /n re Rahrer, 140 U.S. 545 (1891), in

Rhodes v. lowa, 170 U.S. 412 (1898), this Court held that,

although alcohol beverage products lose their character as

items of interstate commerce affer their delivery into a state,

the Wilson Act did not authorize the laws of a state to be

applied to such merchandise while in transit and prior to

delivery to a consignee within the state.

- 6

Similarly, in Vance v. W.A. Vandercook Company, 170

U.S. 438 (1898). this Court declared that the Wilson Act did

not recognize the right of a state to prevent an individual from

ordering alcohol beverages from outside the state for his own

consumption.

Congress moved to close this “loophole,” but not until

1913 did it succeed in passing, over the veto of President

William Howard Taft, what is now commonly referred to as

the Webb-Kenyon Act. Act of Mar. 1, 1913, c. 90, 37 Stat.

699 (current version at §27 U.S.C. 122). The title of the

Act—*An Act divesting intoxicating liquors of their interstate

character in certain cases”—is instructive in determining the

motivation for its adoption. Rep. Clayton, Chairman of the

House Judiciary Committee, which extensively debated the

bill prior to its consideration by the full House of Repre-

sentatives, clearly explained its purpose when he declared

The purpose (of the bill) is to take the protecting arm

of the Federal Government, by virtue of the interstate

commerce clause of the Constitution, from around the

illicit dealers in liquors, and is to allow the States which

have passed police regulations restricting or forbidding

the sale of liquor to better enforce those regulations.

49 Cong. Rec. H2864 (daily ed. February 8, 1913).

This Court upheld the validity of the Act, holding that there

was no reason to state that because Congress had a power to

forbid movement of a product in interstate commerce, it did

not also have the authority to establish a regulation mak iiig it

impossible for one state to violate the prohibition of the law

of another state in interstate commerce. Clark Distilling Co.

v. Western Maryland Ry. Co., 242 U.S. 311 (1917). That

analysis is still good law today.

This Commerce Clause exception was quickly swallowed

up by the national experiment known as Prohibition when the

Eighteenth Amendment was declared to have been ratified by

J

the requisite number of states on January 29. 1919. Section |

of the Eighteenth Amendment not only banned the manu-

facture, sale or transportation of alcohol beverages within a

state, but it also prohibited the importation into any state of

alcohol beverages originating in another state.

When it became apparent that Prohibition was a failure,

Congress moved to undo its Constitutional underpinning by

adopting the Twenty-First Amendment; ratification was

completed on December 5, 1933. Congress could have

completed its effort merely by adoption of Section | alone.

That would have repealed the ban on activity within a state,

as well as the prohibition on importation of alcohol beverages

into any state. However, Congress chose to add Section 2,

which plainly declares

The transportation or importation into any State,

territory, or possession of the United States for delivery

or use therein of intoxicating liquors, in violation of the

laws thereof, is hereby prohibited.

To underscore the Congressional statement on the impact

of the Amendment, the Webb-Kenyon Act was subsequently

re-enacted without change 1935. Act of Aug. 27, 1935, c.

740 §202(b), 49 Stat. 877 (current version at 27 U.S.C. §122).

These two affirmative statements of Congressional intent

make it crystal clear that Congress meant to create an

exception to the normal rules of interstate commerce

regulation in the case of alcohol beverages. As_ the

Constitution’s sole regulator of interstate commerce,

Congress clearly has the power to authorize state regulations

that burden or discriminate against interstate commerce,

Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946). Using

its authority, Congress could have restricted a state’s

authority to ban or regulate imports only in situations where

the state treated in-state products in the same manner, but it

did not. Nowhere in the plain language of the Twenty-First

Amendment is there a hint that, for the purpose of regulating

transportation or importation into any state, a state must treat

out-of-state alcohol beverages in the same manner in which it

treats in-state alcohol beverages.

This Court promptly recognized the impact of the Twenty-

First Amendment, noting that it “sanctions the right of a state

to legislate concerning intoxicating liquors brought from

without, unfettered by the Commerce Clause.” Ziffrin, Inc. v.

Reeves, 308 U.S. 132, 138 (1939). This Court has continued

to recognize that the Twenty-First Amendment “primarily

created an exception to the normal operation of the

Commerce Clause.” Craig v. Boren, 429 U.S. 190, 206

(1976), and that the resultant authority of the state under the

Amendment over importation of alcohol beverages “is

transparently clear.” /d. at 207.

Even as this Court later appeared to suggest that the grant

of authority under the Twenty-First Amendment must be

balanced with Congress’ power under the Commerce Clause

under certain conditions, the scope of those conditions has

been made abundantly clear:

The Twenty-First Amendment grants the States virtually

complete control over whether to permit importation

or sale of liquor and how to structure the liquor

distribution system. Although States retain substantial

discretion to establish other liquor regulations, those

controls may be subject to the federal commerce power

in appropriate situations.

California Retail Liquor Dealers Association v. Midcal

Aluminum, 445 U.S. 97, 110 (1980)

In its most recent review of the Twenty-First Amendment,

this Court noted that Section 2 delegated to the states the

power “to prohibit commerce in” alcohol beverages and

further stated that state “regulatory power over this segment

of commerce is therefore largely ‘unfettered by the Com-

9

merce Clause.’” 44 Liqguormart, Inc. v. Rhode Island, 517

U.S. 484, 515 (1996), citing Ziffrin, supra.

This Court has thus clearly demarcated the scope of the

Twenty-First Amendment: states have “virtually complete

control” over the importation of alcohol beverages. As to

“other regulations,” however, the state’s authority must be

balanced against the Commerce Clause.

In holding the Michigan statute invalid because of a

conflict with the Commerce Clause, the court below

misapplied this long-standing and clear interpretation of the

Twenty-First Amendment. The lower court contended that the

“proper approach” in this case was to apply traditional

dormant Commerce Clause analysis and, if the state’s

approach to regulation was found to be unconstitutional, to

determine whether the unconstitutionality was somehow

“saved” by a Twenty-First Amendment analysis.

The amici cuirae believe that this approach is erroneous;

the lower court should have first looked at the plain language

of the Twenty-First Amendment to determine its applicability

to the situation at hand before going on to review other

sections of the Constitution, not the other way around.

Further, the court below also erroneously relied on

Bacchus Imports v. Dias, 468 U.S. 263 (1984) to support its

reasoning. That case involved a state’s regulation of alcohol

beverages—in this case, taxation—once the beverages

had arrived into the state. The state did not seek to justify

the tax on the ground that it was designed to promote

temperance or to carry out any other purpose of the

Amendment; in fact, the state acknowledged that the purpose

of the discriminatory taxation scheme was to promote a local

industry /d. at 276. Indeed, the Twenty-First Amendment

claim in that case was not even raised by the state until

Supreme Court consideration.

10

Thus, based on the plain language and _ judicial

interpretation of the Twenty-First Amendment, the opinion of

the court below should be reversed and the validity of

Michigan's statute upheld. By the same reasoning, New

York and other states should be permitted to regulate imports

of alcohol beverages in the manner they see fit, even if that

regulation involves differential treatment of in-state products.

Il. MICHIGAN’S STATUTE CLEARLY FALLS

WITHIN THE “CORE POWERS” OF THE

TWENTY-FIRST AMENDMENT THAT HAVE

BEEN RESERVED TO THE STATES

Even if one takes the position that a balancing of the

Twenty-First Amendment and the Commerce Clause should

be considered, it is readily apparent that the court below erred

in its construction of a state’s “core powers” under the

Amendment that are to be given precedence over the

Commerce Clause.

In its brief discussion of “core powers,” the court below

erroneously dismissed virtually out of hand the notion that

Michigan’s direct shipment ban promotes “temperance,

ensuring orderly market conditions, and raising revenue”

which are the state’s “core powers” under the Twenty-First

Amendment that this Court has long recognized. North

Dakota v. United States, 495 U.S. 423, 432 (1990).

Other courts have also shed light on a state’s “core

powers.” For instance, mere regulation of the sale of alcohol

beverages is not sufficient to overcome a Commerce Clause

challenge: a state's regulation “must effect the structure of the

state liquor distribution system.” Pete's Brewing Co. et al. v.

Whitehead, \9 F.Supp.2d 1004, 1020 (W.D.Mo. 1998).

There can be no question that Michigan’s decision to

prohibit the direct shipment of alcohol beverages from a

location outside of the state to consumers within the state is

1}

an integral part of the structure of the liquor distribution

system that the state has chosen to implement. The sale of

alcohol beverages does not take place in a fiee and

unregulated market. Buyers of alcohol beverages must be

twenty-one years of age or older. Sellers are limited to those

who have been licensed by the state after an exhaustive check

of their background. Many licensed sellers, especially those

at the production or wholesale level, are frequently required

to remit excise taxes to the state and licensed retailers are

required to collect and remit applicable sales taxes when the

product is transferred to the ultimate consumer. Many

jurisdictions (e.g., cities and counties) have opted to be totally

“dry,” prohibiting the sale of alcohol beverages altogether.

To strike down a state’s statute as an impermissible burden

on interstate commerce outside of the state’s “core powers”

under the Twenty-First Amendment would undermine a

state’s ability to structure any kind of distribution system, and

lead to a totally unregulated market in alcohol beverages.

Every regulation of in-state producers and sellers would have

to be applied equally, and could lead to virtually unrestricted

trade in alcohol beverages, not only to consumers, but to in-

state retailers as well. If out-of-state sellers are permitted to

ship into a state directly to the state’s consumers, the state

will lack the ability to effectively enforce its laws governing

age of purchaser, background of sellers and collection of

revenue, all of which are central to the system of distributing

and selling alcohol beverages.

Michigan has not rendered it impossible for out-of-state

vendors to reach its consumers. It has merely structured a

system—and done so within the parameters permitted under

the Twenty-First Amendment—that requires licensing and tax

collection. Out-of-state vendors who wish to reach Michigan

consumers may do so within the regime laid out by the state.

While some may believe that there is a less intrusive way

for a state to regulate the importation of alcohol beverages

12

into its borders, the Twenty-First Amendment clearly gives

the state legislature, and not the courts, the power to

determine what kind, if any, importation to allow, and under

what circumstances. This Court should not now undermine

the plain meaning of the Twenty-First Amendment and its

own long-standing interpretations of that Constitutional

provision by the judicial insertion of conditions that have not

heretofore been recognized.

lil. EVEN IF ONE ASSUMES THAT THE

COMMERCE CLAUSE “TRUMPS” THE POW-

ER ACCORDED TO THE STATE UNDER THE

TWENTY-FIRST AMENDMENT, CONGRESS

HAS UTILIZED ITS COMMERCE CLAUSE

AUTHORITY TO DELEGATE CONTROL TO

THE STATES

There is yet another reason, however, why Michigan's

regulatory approach must be permitted to stand. Even if one

accepts the reasoning of the court below, which the amici

curiae believe is erroneous, one is left with Congress’

utilization of its interstate commerce power in the Webb-

Kenyon Act.

As has been indicated previously, that Act both pre-dates

and post-dates adoption of the Twenty-First Amendment. Its

purpose was unmistakably clear: “to prevent the immunity

characteristic of interstate commerce from being used to

permit the receipt of liquor through such commerce in states

contrary to their laws.” Clark Distilling Co., supra.

Placed in the context of the earlier Wilson Act, the Webb-

Kenyon Act represents a “further surrender to the states of the

constitutional power of Congress to regulate interstate

commerce in intoxicating liquors.” Dugan v. Bridges, 161

F.Supp. 694. 704 (D.N.H.), appeal dismissed 300 U.S. 684

(1936). The Act shows an intent to give the states an “entirely

free hand” in regulating the importation of alcohol beverages,

13

Id., and there appears to be no prohibition against discrimi-

nation between liquors produced within the state and those

produced outside the state. Put another way, the Act sanctions

differential treatment of sellers, depending on their location.

The re-enactment of the Webb-Kenyon Act in 1935,

subsequent to the adoption and implementation of the

Twenty-First Amendment, underscores the principle that the

Amendment does not withdraw from the states the power

surrendered to them by the passage of the Act, regardless of

whether one views the Act as a power abdicated that

previously had been exercised by Congress, or as one having

always been retained or reserved under the police powers of a

state. /d. at 707.

The chronological timing of Congress’ action in re-

enacting the Act subsequent to the Twenty-First Amendment

and its clear language indicate that, notwithstanding any other

Commerce Clause analysis, Congress did intend to allow the

states a free hand to regulate, or even prohibit, the interstate

shipment of alcohol beverages into their borders.

To hold otherwise would render the Act and more than a

century of Congressional pronouncements on the power of

states a nullity.

While a balancing test against the Commerce Clause

may be appropriate in certain instances of state enactments

arguably supported by the power bestowed under the Twenty-

First Amendment—a balancing test that, as stated, the amici

do not believe is appropriate here—there can be no balancing

test in construing what, in effect, is the grant of authority

to the states under the Webb-Kenyon Act. Congress clearly

determined to cede a portion of the federal government's

interstate commerce authority to the states, and whether

one agrees with the manner in which the state has exercised

its authority or not, the clear result must be a deferral to

14

state action in the area of regulating importation of

alcohol beverages.

There is nothing more basic to the structure of a state's

alcohol beverage distribution system than the ability to

determine under what conditions the product may be brought

into the state. Alcohol beverages are one of a handful of

products (tobacco and firearms being two others) that the

government has determined warrant special treatment by

means of controlling who may sell and who may purchase the

product. There is not now, nor has there been for more than

150 years a “free™ market in alcohol beverage distribution

and sale. To disallow Michigan's (and other states’) lawful

attempt to control and regulate the distribution of this product

would mean that virtually no importation regulation would be

allowed to stand, leading to the uncontrolled and uncon-

trollable distribution of alcohol beverages.

This case is not about whether direct shipping of alcohol

beverages to consumers should be allowed or prohibited. It is

about the right of each state, acting pursuant to the Twenty-

First Amendment, to decide for itself how it wishes to deal

with its alcohol beverage distribution system.

Alcohol beverages should not be turned into the functional

equivalent of polo shirts or blue jeans merely because a

trier of fact believes there is a better way to regulate the

product's flow.

15

CONCLUSION

For the reasons set forth herein, the decision of the Sixth

Circuit should be overturned and the case remanded for

further proceedings not inconsistent with the decision herein.

The decision of the Second Circuit in a companion case

should be upheld.

Respectfully submitted,

JAMES M. GOLDBERG *

GOLDBERG & ASSOCIATES, PLLC

Suite 1000

1101 Connecticut Avenue, N.W.

Washington, DC 20036

202-628-2929

* Counsel of Record Counsel for Amici Curiae