Handicapping what the Supreme Court will focus on in oral argument is very difficult. Especially since the oral argument only last for one hour. I listed 9 issues that may be the focus of the oral argument.
Some of the listed issues the Court will definitely focus on and others are more obscure and may or may not get the Court’s attention.
I wanted to prepare a quick checklist of issues before I go to oral argument. Whether you are anticipating from home or will be there in Washington, I hope this list benefits you!
Enjoy and I’ll be blogging live from Washington!
1. Will the Court focus on the standing issue?
In a previous post I focused on whether the Court could dismiss for lack of standing. http://irishliquorlawyer.com/will-the-roberts-court-stand-down-on-the-tennessee-wine-case/. I drew a direct parallel between this case and Hollingsworth v. Perry, where the Court dismissed the Hollingsworth case based on lack of standing. In Hollingsworth, the state chose not to represent its interest and a private party represented the state’s interest. In Tennessee Wine, the state is not representing its interest and a private party is stepping in its shoes.
Will the Court broach this subject during oral argument? One interesting difference between the two cases, which may sway the Court, is that in Hollingsworth, the state did not favor the private party’s action. Whereas in Tennessee Wine, the state has written a letter in support of the private party and maintains that the private party is representing its interest.
2. Are there limits on the Dormant Commerce Clause, and what is the role of the 21st Amendment?
Many cases running through the court system focus on state liquor laws that some believe are protectionist and discriminatory. The Courts often times utilize Dormant Commerce Clause Powers to rule these aforementioned state liquor laws unconstitutional.
Some of the briefs, supporting the petitioner, have even questioned whether the Constitution allows for Dormant Commerce Clause powers. And others mention the limits on utilizing Dormant Commerce Clause powers.
I wouldn’t expect the Court to spend the whole time talking about giving away Dormant Commerce Clause powers, nevertheless, could the Court raise the issue about the proper boundaries of the Dormant Commerce Clause?
Additionally, the Court may question either party to get an answer to where is the line on when a state law can violate the Dormant Commerce Clause, and still be protected by the 21st Amendment?
Another interesting question is if a 21st Amendment justification to regulate liquor is always doomed when it meets a Dormant Commerce Clause challenge?
In other words, could the oral argument shed light on whether the Court will provide nearly unlimited power to the Dormant Commerce Clause?
3. Will the Court challenge the position that a residency requirement is necessary, because a person in a local community, selling a highly regulated product is more invested in the safety of the community than a nonresident?
In the Lebamoff case out of the 7th Circuit, Chief Judge Wood ripped into the state’s position because it allowed an in-state retailer in Cairo, Illinois, 370 miles away from Chicago to deliver, while a retailer in Hammond, Indiana 30 miles away from Chicago could not.
The difference between the two hypothetical stores is in-state residency. However, the Hammond store is closer to the local Chicago community than the store in Cairo.
If the petitioner takes the position that a local retailer has more interest in the local community, then could the Court question the important distinction between in-state and out-of-state retailers?
4. Durational residency requirements: where is the line?
In Tennessee there is a two-year and a ten-year durational residency requirement. In South Carolina there is a 30-day durational residency requirement.
Does the Court in oral argument obliterate all durational residency requirements, or do they draw a line on what is permissible and impermissible?
5. Are the durational residency requirements an integral part of the three-tier system?
If a state law is going to survive a Dormant Commerce Clause Challenge, it must show that the regulation/law protects an integral aspect of the three-tier system. If the law/regulation does not, it could face tough odds in withstanding a challenge.
The Court could raise questions whether the durational residency requirement is integral to the three-tier system.
6. Will the Court broach the issues of reasonably discriminatory alternatives?
The Court has a limited time to discuss very important issues, will this issue play a role in their oral arguments? It played a role in the 6th Circuits decision, I would assume it becomes part of the oral argument.
7. Will the oral argument turn on the debate of whether the three-tier system is unquestionably legitimate?
The petitioner makes this argument a main part of its case, as has many state governments in past and recent cases. However, some briefs opposing the petitioner’s position called into question this legal principle. Further, Judge Wood in the 7th Circuit minimized this principle in her Lebamoff decision. Could the Court question this legal principle?
8. What does the Commerce Clause and the 21st Amendment deal with?
The National Association of Wine Retailers makes the argument that the Commerce Clause historically dealt with the sale and exchange of liquor product and did not focus on production. So, they argue that by the petitioner limiting the Granholm decision to producers, they ignore the intent of the Constitution.
The Tennessee Wine and Spirits Retailer’s Association responded that the 21st Amendment was not designed to curtail production, but designed to combat the dangers from the flow of goods into a state and the sale of alcoholic liquor.
Will the Court delve into this debate during oral argument?
9. Can the state make laws that discriminate against out-of-state retailers?
The big question is whether the Court will limit their analysis to the durational residency requirements, or will it opine on whether a state can create any discriminatory laws against out-of-state retailers?
This is the million-dollar question! If the Court opines on the latter, it would seem we will get an answer to the widely debated Granholm question.
It would seem from the 6th Circuit opinion and the fact that the Supreme Court took this case, that they will delve into this matter.
I think it is a matter of how gray they will leave this area.
No one knows with certainty how the oral argument will play out. I put down 9 issues that could be part of the discussion. Nevertheless, the Court will probably focus on two or three main issues.
It should be an interesting oral argument! Stay tuned for my live blogging from Washington on Wednesday!
Take care and have a good day!