A Tipsy Balance: Dormant Commerce Clause Limits on a State's Prerogatives under the Twenty-First Amendment

Authors

Sherry Truong

Abstract

The Eighteenth Amendment, which prohibited alcohol distribution and sales nationwide, signaled a shift in American culture that valued temperance and lawfulness. States exercised their expanded plenary powers by creating and enforcing laws banning alcohol within state borders, giving rise to continual challenges to regulatory schemes that arguably ran afoul of the Commerce Clause. Over a decade later, the prohibitionist movement faltered as public support waned, paving the way for the ratification of the Twenty-first Amendment and thereby abolishing Prohibition, leaving the Supreme Court with the task of balancing and enforcing limits on state power to regulate alcohol. In Granholm v. Heald, the Supreme Court upheld such limits when it ruled that state regulatory schemes that discriminated against out-of-state wineries while exempting in-state wineries violated the dormant Commerce Clause. Though Granholm is still binding law, current Pennsylvania state law employs a discriminatory scheme with beer and malt beverage manufacturers that the Granholm Court ruled was unconstitutional. This Note will examine: (1) the United States' history of federal regulation of alcohol; (2) the progression of Twenty-first Amendment jurisprudence and its interplay with potential limits of states' alcohol regulating powers by the dormant Commerce Clause; (3) the procedural history and legal landscape leading up to Granholm; (4) the Supreme Court's affirmation of Commerce Clause limits on the Twenty-first Amendment in Granholm; (5) the state of dormant Commerce Clause limits post-Granholm; (6) how the Granholm analysis supports the argument that Pennsylvania's regulation forcing out-of-state beer and malt beverage manufacturers to abide by the three-tier beer and malt beverage system is similarly burdensome, discriminatory, and in violation of the dormant Commerce Clause; and (7) how three particular justifications for state's absolute regulatory power under the Twenty-first Amendment are outdated in light of the shift in case law and the growth of e-commerce in the alcohol industry.

Recommended Citation

Sherry Truong, A Tipsy Balance: Dormant Commerce Clause Limits on a State's Prerogatives under the Twenty-First Amendment, 44 Hastings Const. L.Q. 203 (2017).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol44/iss2/3