June 26, 2019

"The justices now have eight more opinions to release, on topics ranging from partisan gerrymandering... to the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census."

Writes Amy Howe, with summaries of the 8 cases.

We're just a few minutes away from the release of new opinions, which will be announced right away in the live-blogging at SCOTUSblog.

UPDATE:
Justice Gorsuch has the first opinion, in US v. Haymond.... The court holds that a federal law requiring a defendant who is registered as a sex offender to return to prison for at least five years if a federal judge finds that the defendant violated the terms of his supervised release is unconstitutional.... Gorsuch writes that only "a jury, acting on proof beyond a reasonable doubt, may take a person's liberty." But in this case, a federal law required a judge to send Haymond to prison without "empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt. As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments."...

We have Kisor v. Wilkie, from Justice Kagan.... This case was about whether to uphold the doctrine known as Auer deference, which instructs courts to defer to an agency's interpretation of its own regulation.... Kagan says the only question before the court is whether to overrule Auer, and the answer is no. But "even as we uphold it," she writes, "we reinforce its limits. Auer deference is sometimes appropriate and sometimes not."

We have our third and FINAL opinion of the day.... TN Wine and Spirits v. Thomas, from Alito. This is the challenge to the constitutionality of Tennessee's residency requirements for retail liquor licenses.... The Supreme Court affirms the Sixth Circuit's ruling, which struck down the residency requirement.
ADDED: The last one is in the area I used to teach. It's a negative commerce clause case (made interesting because the subject is the sale of alcohol, and there's a special text, the 21st Amendment). The majority opinion, written by Alito, is joined by everyone except Gorsuch and Thomas. Thomas's strong position against the negative commerce clause [AKA the "dormant commerce clause"] was already known. It's interesting to see Gorsuch here. Gorsuch writes the dissenting opinion, and it's the one opinion I'll read this morning.

From the Gorsuch opinion in TN Wine and Spirits:
Alcohol occupies a complicated place in this country’s history. Some of the founders were enthusiasts; Benjamin Franklin thought wine was “proof that God loves us.” Letter from B. Franklin to A. Morellet (July 1779), in 7 Writings of Benjamin Franklin 437 (A. Smyth ed. 1907). Many in the Prohibition era were decidedly less enamored; they saw “liquor [a]s a lawlessness unto itself.” Duckworth v. Arkansas, 314 U. S. 390, 398 (1941) (Jackson, J., concurring in result). Over time, the people have adopted two separate constitutional Amendments to adjust and then readjust alcohol’s role in our society. But through it all, one thing has always held true: States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today and for the first time, the Court claims to have discovered a duty and power to strike down laws like these as unconstitutional. Respectfully, I do not see it.

Start with the text of the Constitution. After the Nation’s failed experiment with Prohibition, the people assembled in conventions in each State to adopt the Twenty-first Amendment. In §1, they repealed the Eighteenth Amendment’s nationwide prohibition on the sale of alcohol. But in §2, they provided that “[t]he transportation or importation into any State . . . for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The Amendment thus embodied a classically federal compromise: Nationwide prohibition ended, but States gained broad discretion to calibrate alcohol regulations to local preferences. And under the terms of this compromise, Tennessee’s law imposing a two-year residency requirement on those who seek to sell liquor within its jurisdiction would seem perfectly permissible....

Straying from the text, state practice, and early precedent, and leaning instead on the Amendment’s famously sparse legislative history, the Court says it can find no evidence that §2 was intended to authorize “protectionist” state laws. Ante, at 21, 22 n. 15. But even there plenty of evidence can be found that those who ratified the Amendment wanted the States to be able to regulate the sale of liquor free of judicial meddling under the dormant Commerce Clause—and there is no evidence they wanted judges to have the power to decide that state laws restricted competition “too much.”... Reduced competition and increased prices were foreseeable consequences of allowing such unfettered state regulation, but they were consequences the people willingly accepted with the compromise of the Twenty-first Amendment....
How much public health and safety benefit must there be to overcome this Court’s worries about protectionism “predominat[ing]”?... As judges, we may be sorely tempted to “rationalize” the law and impose our own free-trade rules for all goods and services in interstate commerce. Certainly, that temptation seems to have proven nearly irresistible for this Court when it comes to alcohol.... Like it or not, those who adopted the Twenty-first Amendment took the view that reasonable people can disagree about the costs and benefits of free trade in alcohol. They left us with clear instructions that the free-trade rules this Court has devised for “cabbages and candlesticks” should not be applied to alcohol. Carter v. Virginia, 321 U. S. 131, 139 (1944) (Frankfurter, J., concurring). Under the terms of the compromise they hammered out, the regulation of alcohol wasn’t left to the imagination of a committee of nine sitting in Washington, D. C., but to the judgment of the people themselves and their local elected representatives. State governments were supposed to serve as “laborator[ies]” of democracy, New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting), with “broad power to regulate liquor under §2,” Granholm, 544 U. S., at 493. If the people wish to alter this arrangement, that is their sovereign right. But until then, I would enforce the Twenty-first Amendment as they wrote and originally understood it.

72 comments:

Dave Begley said...

I'll be most interested in reading the dissents by the Libs in the census case.

The whole liberal premise is that the federal government can't ask a legit question of the people who are in this country based upon the speculation that some people who are here illegally might not return the census form. That's crazy.

Lucid-Ideas said...

I'm really hoping for a 5-4 on 2020 census.

Harris was on record on twitter saying (paraphrase), "...Trumps deportations of illegals is a demographic replacement strategy…"

Yeah no kidding Kamala, just like libs support of illegal immigration is the exact same thing. You just unzipped your fly. But we already know what was there.

The importation of a new electorate and middle-class over the existing one elected officials need to be accountable to is and has been the most important political issue in this country of the last 40 years. It is time for this experiment to end.

WisRich said...

Dave Begley said...

Agreed

The question is so benign yet liberals are still making filing to SCOTUS as late as yesterday. They're hoping the can flood the court with so many BS late filings that they will delay the decision until fall, effectively eliminating the question from the census without a decision from the court.

I hope SCOTUS doesn't fall for it.

Gahrie said...

You never discussed the Oregon bakers' case, or the fact that the Colorado baker has been sued a third time....

Gahrie said...

How can it be unconstitutional to restore a question on the census that was previously on the census?

Bay Area Guy said...

Dem politicians: you can't stop illegals from entering the country!

Dem Judges: you can't count them, once they're here!

Mike (MJB Wolf) said...

As we wait it is a good time to contemplate news reports about the census question. As is the DNC-FakeNews complex’s wont reports have avoided facts and emphasized emotion and the plight of the illegal faced with answering the question, “Are you a citizen?” Left out of the “news” has been the most relevant fact to the issue. Every prior Census has included the citizenship question, except the last two when we had openly pro-illegal alien Presidents. Every OTHER Census since 1800 included the question in question. Why is it so fake-controversial now? Because the Democrats are hysterically desperate to import enough Democrats to win in 2020 and beyond. Their evil constituent-replacement plan was oh so close to fruition when Orange Man Bad disrupted the process. Damn!

rehajm said...

I hope SCOTUS doesn't fall for it.

Seems like just the out it needs.

readering said...

Not today

traditionalguy said...

One wonders whether the Supremes think about how fast the Dems will pack the court after their highly favored illegals voting using the Dem approvals motor voter licenses take over the USA.

narciso said...

So you have mount another trail to jail a sex offender again?

EDH said...

You say "negative", I say "dormant".

Let's call the whole thing off!

readering said...

Tomorrow's the last day. We'll learn about police drawing blood from person.

MountainMan said...

The first census to ask about citizenship was in 1870, in questions 18 and 19, the last two questions on the census form:

18. Is the person a male citizen of the United States of 21 years or upwards?
19. Is the person a male citizen of the United States of 21 years or upwards whose right to vote is denied or abridged on grounds other than "rebellion or other crime?"

These questions were specifically asked because of this requirement of the 14th Amendment:

Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Since there is a Constitutional requirement that the government have knowledge of the number of citizens in a state eligible to vote , and those that have been denied the right to vote, it is hard to understand how a suit seeking to prevent the enumeration of citizens in a state ever got this far. I have not seen this issue discussed much in relation to this case except one, that might have been on the Volokh blog.

The question of citizenship, country of birth, naturalization, etc., has been asked numerous times since 1870. I think the only time the question was not asked, either on the population census or the supplementary housing census (taken from 1940 to 1990) was in 1960 and 2010.

Prior to 1870, several of the census forms asked for location of birth but not citizenship. From 1790 to 1830, the census only asked for name of head of household and took a count of age groups of free persons and slaves.

Mike said...

I know this isn't the big story today but... god I hate you Tennessee Wine & Spirits Retailers Association. We just want to but alcohol whenever we can, and not have stupid restrictions on it. Finally we're getting rid of all of them. Hopefully this ruling makes prices lower as well.

Mike in Nashville

EDH said...

This one is for Althouse. "Sing it with me..."

Annie's Song

You fill out my census
Like a night in a forest
Like the mountains in springtime
Like a walk in the rain
Like a storm in the desert
Like a sleepy blue ocean

You fill out my census
Come fill me again

BleachBit-and-Hammers said...
This comment has been removed by the author.
MayBee said...

I like that first decision.

BleachBit-and-Hammers said...

Dem politicians: you can't stop illegals from entering the country!

Dem Judges: you can't count them, once they're here!



Added:
Dem Politicians: You can give illegal entrants drivers licenses and access to vote!

Nonapod said...

The Amendment thus embodied a classically federal compromise: Nationwide prohibition ended, but States gained broad discretion to calibrate alcohol regulations to local preferences. And under the terms of this compromise, Tennessee’s law imposing a two-year residency requirement on those who seek to sell liquor within its jurisdiction would seem perfectly permissible

I'm not certain that a allowing States to have laws that ban the sale and/or consumption of alchohol is equivilant to allowing them to have a law that requires residency to sell it.

This is why I dislike the purposeful imprecision of the language in our laws.

tim maguire said...

I'd like to see the citizenship question ruled unconstitutional because the only question authorized by the constitution is "how many people live here?"

Howard said...

Gorsuch's ruling makes no sense. How is residency related to following the law? Every jurisdiction has local rules covering all manner and type of commercial activity with extreme levels of sophistication and complexity and multinational corporations regularly comply with them. Obviously he has a problem with alcohol. What about tobacco and firearms as well? I can't imagine you people supporting that. Is Gorsuch the new Souter?

mezzrow said...

well played, @EDH. In more Annie's song news, Sheffield United will be going up to the prem next year, so watchers will get to hear what might be the best fan song in English football. The name is the Greasy Chip Butty Song - same tune. It's a tribute to the sweet life in Sheffield. Look it up.

Now back to the court.

mccullough said...

The states weren’t meant to be “laboratories of democracy.” That’s just Brandeis bullshit. Gorsuch is a fool to quote that argle bargle. That quote should be rejected as incompatible with the Constitution.

That said, the old boy is right in this case. More activist bullshit by the nine-headed Caesar.

Fernandistein said...

Too bad "Department of Commerce v. New York" isn't really a street brawl.

HoodlumDoodlum said...

Howard said...Gorsuch's ruling makes no sense. How is residency related to following the law

I think the issue is whether the residency requirement itself, TN's law, is Constitutional. Gorsuch says it is because the 21st both made booze legal nationwide AND gave states the power to regulate it (its sale, distribution, etc). The majority says that TN law (requiring 2 years of residency in order to get a TN liquor license) is unconstitutional--that TN doesn't have the authority to pass such a law; Gorsuch disagrees and says it's a permissible state regulation, applying to TN only, within the power of TN under the 21st.

I don't like most regulations on commerce and if I was a TN resident I'd probably vote against that law, but Gorsuch's framing of the issue--as being within TN's plain authority--seems pretty persuasive.

HoodlumDoodlum said...

EDH: Upright Citizens Brigade - John Denver Fan Club

HoodlumDoodlum said...

You might say having a 2-year residency requirement serves no purpose and is an infringement on an individual's right to do business in TN (selling liquor). Ok, but apply that same logic to any other employment regulation--a state requirement to pass that state's Bar Exam to practice law, say. If I have a law degree and have passed the GA bar why should TN prevent me from selling my services in their state--what purpose does that requirement serve? Pick any number of many similar restrictions.

The question is whether the restriction rises to the level of infringing on a fundamental personal right and if not whether the restriction is within the state's power to make. The Court presumably doesn't have much of a problem with all sorts of employment regulations generally. A libertarian would say they restrict an individual's freedom of association, freedom of contract, etc but the vast number of such regulations and laws suggests the Court doesn't take that view. The question then is whether the specific regulation is within the state's power to make.

There are still some states where all liquor sales must be made through state-run stores, aren't there? It seems funny to say that's a permissible regulation (banning private liquor stores altogether) within a state's power--effectively preventing anyone from moving from anywhere else and running a liquor store there--but requiring anyone who moves into TN to be there 2 years before qualifying for a license is impermissible.

An outright ban (on anyone, state resident or not from making a living selling liquor) is OK but a regulation (requiring 2 years of residency) isn't, in other words. That strikes me as odd! Probably an equal protection argument in there, I dunno.

Howard said...

Thanks HoodlumDoodlum. However, states have the authority to regulate all manner of things besides alcohol. It seems to me that the residency requirement is overridden by the federal nature of our country and constitutes restraint of trade.

Howard said...

You don't have to live in the state to pass the bar or the PE exam.

Howard said...

HoodlumDoodlum: appreciate your thoughts, hopefully this could be used as leverage to end the state package store laws.

mockturtle said...

Your SCOTUS updates are excellent and I'd like to see you report on every decision, the legal precedents and summaries of the arguments. As a non-lawyer, I find it very helpful in understanding these decisions. Thank you!

traditionalguy said...

Hurrah! At last we have free markets in Pharmaceuticals. Who knew. Now we need to remove all State attempts to regulate the Medical Profession Monopoly.

Alcohol is a powerful and addictive, self prescribed, drug. All restriction on alcohol and the other powerful drugs is DESIGNED to create monopoly for the Governing entity and their friends to cash in on. Why do you think the Bush gang went into Government service ? The better to control the running of powerful and addictive drugs from Afghanistan and build dozens of CIA Drug Labs there using our Military's protection.

Also refer to Queen Victoria's Boxer rebellion Wars to protect her loot from the monopoly on sales of Afghan Heroin in China.

MountainMan said...

tim maguire said: I'd like to see the citizenship question ruled unconstitutional because the only question authorized by the constitution is "how many people live here?"

Not true. See my post at 9:40AM about the 14th Amendment. Section 2 of the 14th Amendment cannot be enforced without knowing the number of citizens in a state.

narciso said...

the bush's spent 20 years in the oil business, jeb was a banker and a developer (shazbat) before becoming party chair and then governor, in the former capacity he ran into some characters that could have ended up in a mueller report had the yen have been around then,

now weld is a different animal, his family started in opium, then banking and then us attorney where he supervised mueller,

Roger Sweeny said...

I can't help playing the law school game: Would Gorsuch have been okay with a law that required ten years of residence before getting the license? Twenty? Family in the state since 1796? Being white? Being black? Being the descendant of a slave manumitted in Tennessee?

The bare text of section 2 allows them all.

Rabel said...

Here's the Volokh post about Section 2 of the 14th that MonuntainMan referenced.

iowan2 said...

Again, Where does SCOTUS find its power to overrule a sovereign State, and the citizens who are exercising self governance? The injured party? Non-state citizens. So? State govt restrict who is allowed to braid hair, so restrictions on earning a living is not a bug, but a feature state and local govts exercise daily.
Iowa until recent history allowed zero ownership of retail liquor sales. ZERO. Unsure at this time, but after Iowa legislature changed the law, retailers only had one source to buy. The State of Iowa.

I welcome a constitutional explanation of why 5 Judges that have no knowledge of Indiana impose the Judges opinion on the citizens of Indiana. There is a political path to adust this arrangement if the people have a desire to change it.

Drago said...

Howard: "Gorsuch's ruling makes no sense."

Of course it does.

You are simply flummoxed by the fact that Gorsuch is not a "wise latina".

The Vault Dweller said...

I'm really liking Gorsuch on the court. While I like the policy outcomes of the Tennessee spirits case, I have to admit I agree with Gorsuch's analysis. Because of the constitutional imposition and then later repeal of prohibition alcohol holds a special place in regards to interstate commerce. Even if the same mentality and politics don't exist as they did during prohibition and when it was repealed, the text and intent of those amendments need to be followed, and alcohol was clearly given a special status.

Also a Gorsuch-like type of justice seems like an archtype that could get more broad political support from the right and left. Of course I say this before any of the upcoming abortion cases make there way to the supreme court.

h said...

I get the impression that Kagan has shown herself much more open to listening to arguments from Justices "on the right". I think Gorsuch and Alito are figuring out how to frame principled arguments in a way that will sway Kagan.

narayanan said...

Are the opinions released in the order the cases were taken up in oral argument?

The Vault Dweller said...

Blogger narayanan said...
Are the opinions released in the order the cases were taken up in oral argument?


No, because the order the court hears cases isn't necessarily the order in which the cases are decided.

n.n said...

Hurrah! At last we have free markets in Pharmaceuticals.

Pharmaceuticals and medical. It is yet to be seen if a regulatory order will change their behavior. Hopefully, no one will be FUCT, no business or organization Planned.

robother said...

Reading Gorsuch's opinion, it is hard not to see the "dormant Commerce Clause" cases as another expression of the "substantive due process" doctrine that enshrined economic libertarianism as central to the interpretation of the Constitution after the Civil War.

Ignorance is Bliss said...

narayanan said...
Are the opinions released in the order the cases were taken up in oral argument?

Also, for the decisions announced on the same day, they are announced in order of increasing seniority of the decision's author.

Tina Trent said...

@Narciso: No, the sex offender case decision is not supposed to mean you can't send any sex offender back to prison for violating release. It was supposed to be a narrow issue regarding a statutory rule on child porn.

But Gorsuch screwed it up. As Alito writes in the dissent, Gorsuch laid the groundwork for eliminating the ability to return ANY offender to prison without an additional trial. And that could destroy revocation entirely.

Unintentionally? Maybe so but it's a big error, and I don't believe in accidents in politics or law. Is Gorsuch drunk-deciding? Worse is he mixing it with Kool-Aid? I don't know but the decision is a mess.

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Yancey Ward said...

Gorsuch authored opinion is correct in my judgment. I don't see how you can sentence someone to prison without a damned a trial that obeys the Bill of Rights. How anyone could dissent from that position is mind-boggling to me. Surely, the dissent doesn't rest on the defendant agreeing beforehand to that penalty?

Yancey Ward said...

Tina,

As I understood it, this isn't revocation of parole- this was a flat out addition to the original sentence. When you are on parole, you are still serving the original term handed down by the judge at the original jury trial- the parole ends at the endpoint of the original term handed down. In this case, the federal law was ex post extending the effective term of incarceration. If you want to incarcerate someone for a new crime, you should have to hold a new trial.

Francisco D said...

Howard,

I have no opinion on Gorsuch's ruling, but it makes Constitutional sense:

The Amendment thus embodied a classically federal compromise: Nationwide prohibition ended, but States gained broad discretion to calibrate alcohol regulations to local preferences. And under the terms of this compromise, Tennessee’s law imposing a two-year residency requirement on those who seek to sell liquor within its jurisdiction would seem perfectly permissible

Yancey Ward said...

"Are the opinions released in the order the cases were taken up in oral argument?"

No. What is historically the case, however, is that the most contentious, politically sensitive decisions are given down on the last day before the Summer recess. This year is no different, apparently. I think it isn't that the case is only ready at the last moment, but that the justices want to avoid the clown circus that such momentous decisions always invite.

Tina Trent said...

Yancy. I agree and disagree. If they had stuck to the narrow rule at hand, it would be reasonable. Sure, take the issue of five additional years for child porn and fix that one problematically drafted sentencing rule. What Alito is saying, and I agree, is that Gorsuch screwed a much bigger pooch with the decision as he wrote it, with implications for all revocations of parole, which is a total deviation from the ordinary, legitimate, and effective practice of using early release from prison as a carrot and stick - the stick being returning some to prison to FINISH the sentence the have already received in a jury trial.

Nonapod said...

Amendment XXI

SECTION 1

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

SECTION 2

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.

SECTION 3

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.


Evidently there's been a bunch of rulings indicating that Section 2 somehow gave states broad regulatory discretion far beyond just "transportation...for delivery or use". When lreading the actual text, those rulings seem ill considered to me. But whatever. I really don't care one way or the other.

Yancey Ward said...

Tina,

I just read the majority opinion and the dissent. I just don't see what the dissent is getting at here. Gorsuch is attacking the fact that Haymond was sentenced to a term beyond that handed down at the original trial. Under the normal revocation procedure, he could have had his parole revoked and sent back to serve the remainder of the original 10 year sentence- this would have been a maximum of an additional 2 years in prison since he had served 38 months in prison and had been on parole for just about 5 years. However, the federal law required the judge to add an addition 3 years to the original sentence. If the judge had just revoked the parole and sentenced him to the last two years of his original sentence, then there would have been no constitutional problem. Nothing was preventing the government from charging him with the possession of child pornography again, trying, convicting, and sentencing him to the new 5 year sentence. They should have to do that if they want him in prison longer than handed down on the original conviction.

rcocean said...

Both Goresuch and Kavanaugh strike me as attention seeking drama queens. EVERY opinion has Roberts, Goresuch and Brent k, writing their own separate concurrences and dissents.

Instead of getting a solid 5 constitutionalist majority - we're back to the liberals voting as a bloc and always finding 1 or 2 conservative "Mavericks" to support them. Ginsberg must be planning to stay she's 100, she must be so happy.

rcocean said...

What right has the Federal court to strike down a Tennessee law? None. Show it to me in the Constitution.

Its a joke. But then Roe v. wade is a bloody joke.

phantommut said...

Nonapod: "Evidently there's been a bunch of rulings indicating that Section 2 somehow gave states broad regulatory discretion far beyond just "transportation...for delivery or use".

Well, yes. ... in violation of the laws thereof, is hereby prohibited.

If the State in question passes a law that the alcohol imported may not be sold by a person who has not been a resident for at least two years, then such activity is, well, prohibited. Welcome to Federalism.

Tina Trent said...

Hey Yancey I have no knowledge of this happening but perhaps the case was used to clean up the sentencing issue?

The dissent makes sense to me. Gorsuch was over-broad. Did his argument open the door to unintended consequences? Someone with more knowledge could probably explain it better. I'm not a lawyer. I just try to get recidivist and violent crime sentencing laws passed. Or not. That said, I know this narrow topic.

Nonapod said...

@phantommut said...

To me, Section 2 basically says you can't transport "intoxicating liquors" into a state that has laws prohibiting it. The implication of this being that States are allowed to prohibit the sale and use of liquor. But since it isn't clearly spelled out by saying something clear and straight forward like "States are allowed to prohibit and regulate the sale and use of intoxicating liquors" (which, in amendment form, would override the so called "Dorment Commerce Clause" I guess) we have all this annoying ambiguity.

alanc709 said...

I wolud have loved to have seen the Tennessee law upheld on the basis of the 10th Amendment. It's a stretch for the Court to find they have a valid basis for overturning it.

The Vault Dweller said...

@Nonapod

I think the important part of section 2 is, "in violation of the laws thereof,". This really, to me at least, seems like a plenary grant or acknowledgement of regulatory power for States to exercise in regards specifically to alcohol. Now states already had their own general police powers they could use to affect alcohol sales, but the fact that the amendment specifies alcohol regulations of states and doesn't limit which parties are affected by the prohibition of violating states' laws regarding alcohol, suggests to me that the Federal government is also constrained by this prohibition against violating state laws regarding alcohol. Which to me seems like it would affect the dormant commerce clause from preventing state regulation of alcohol.

walter said...

Bay Area Guy said...
Dem politicians: you can't stop illegals from entering the country!
Dem Judges: you can't count them, once they're here!
--
They're merely undocumented.
Hey..don't you dare document them!
They live in the shadows.
Put away that light!

walter said...

Similarly:

Dan Bongino
‏Verified account @dbongino
2h2 hours ago

Dan Bongino Retweeted wayfairwalkout

Lunatic Liberals: “We must take care of the children!”

Also Lunatic Liberals: “Dammit, those children will sleep on concrete floors or we are walking off the job!”

#Imbeciles

traditionalguy said...

This learned Commerce Clause that now you see it and then you can't is a shell game. The only decision being made by the Exalted High Court is basic Cui Bono. The flow of money and power that accompanies the Regulation of the Pharmaceutical Alcohol has been snatched out of the local Tennessee guys hands. Big money interests owning Liquor Distribution schemes can suddenly buy and sell Tennessee the highest bidder across State Lines and across Global lines.

Howard said...

Blogger rcocean said...

Both Goresuch and Kavanaugh strike me as attention seeking drama queens. EVERY opinion has Roberts, Goresuch and Brent k, writing their own separate concurrences and dissents.

Instead of getting a solid 5 constitutionalist majority - we're back to the liberals voting as a bloc and always finding 1 or 2 conservative "Mavericks" to support them. Ginsberg must be planning to stay she's 100, she must be so happy.


Preach it, sistah! That's exactly what I've been sayin. We got a Souter and a Kennedy.

Happy Daze

narciso said...

the Commerce Clause was about Commerce, we've turned into a swiss knife contraption for everything, it was the way to end Federalism,

Michael McNeil said...

On the other hand, regarding Gorsuch, we have this: “Gorsuch joins Thomas in a Constitutionalist Revival.”

phantommut said...

@Nonapod

The question at hand is whether the Commerce Clause protects the individual who wishes to sell the alcohol from restrictions that the State of Tennessee wishes to place on said individual. The Sixth Court determined it did, and the majority of the Supreme Court concurred. "Because
Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional."

The Clause itself is simple: [The Congress shall have Power To] regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Nothing about this case involves whether it is legal to transfer or use alcohol to or within Tennessee. (I'm assuming Thomas-not-from-Tennessee wasn't acting as an interstate distributor but simply as a re-seller.)

Absent a law passed by Congress that specifically forbids "favoring the State's residents" in who can and can't sell alcohol, this ruling strikes me as little more than the Sixth Court (and now the Supreme Court) deciding that the State of Tennessee was being mean and that's not nice and that they should therefore be stopped from being mean and not nice. In other words, acting like lawmakers instead of judges.

Greg P said...

But in §2, they provided that “[t]he transportation or importation into any State . . . for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

"Importing" is not "selling". States can make rules about the importation. But once it's in there, theres no Constitutional grant for States to discriminate against fellow US citizens from other States, esp. once they've moved in.

Whether or not Thomas is right about the Commerce Clause, Gorsuch's argument from the 21st doesn't hold water, or booze.

Greg P said...

HoodlumDoodlum asked...
Ok, but apply that same logic to any other employment regulation--a state requirement to pass that state's Bar Exam to practice law, say. If I have a law degree and have passed the GA bar why should TN prevent me from selling my services in their state--what purpose does that requirement serve?

The purpose of requiring you to know TN law before you practice law in TN.

Whether or not that's "enough" of a reason, it's entirely wrong to claim that knowing GA law means you also know TN law

Bricap said...

I haven't waded through the liquor retailer decision itself, but a Cliff's Notes version I ran across suggests that the way for a state to ban shipments from out of state is to also ban shipments that leave the state

Anyway, I am happy to see the decision decided as it was. Here in Illinois, the big distributors were able to get laws passed that made it a felony under certain scenarios involving out of state retail liquor purchases. This crap has finally been put to bed.

Numerous states had forbidden out of state retail purchases. These were meant to benefit the big distributors who had a stranglehold on a given state's liquor market(s). There are a lot of wines that can only be found in a few select spots. Those of us who wanted them would have to have a friend or relative in a state with friendlier laws take the shipment for us.