# Amicus Curiae Brief — Granholm v. Heald

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0736%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 460

## Text

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

eh yy eh | | | | ) a eeeee

DARE GF AT TER RIees 8 Be cececccccccccscccccccccccesssccsccccosees

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

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

ARGUMENT....

CONCLUSION

TCE

POPP PEC C COCO COCOCOOCCOCOOCCCCC COSCO CeCe eee eee eee

(iii)

Page
i

iV

7

3

3

15

iv

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0736%3A25. Public record. Not legal advice.