Lebamoff’s legal team filed a petition for en banc rehearing with the 6th Circuit today. Michigan prevailed at a three-judge panel on a lawsuit which challenged the constitutionality of their wine retailer shipping law, Michigan allows in-state retailers to ship to Michigan consumers but denies that privilege to out-of-state retailers.

The petition made an interesting point that really has never been part of Twenty-first Amendment/Commerce Clause cases. It focused on Judge Sutton’s comment that: “But the Twenty-first Amendment leaves these considerations to the people of Michigan, not to federal judges.”

In other words, Judge Sutton allowed discrimination because the Twenty-first Amendment allows the people of Michigan and not federal judges to decide whether discrimination is permissible.
It should be interesting to see whether the full panel will hear the case.
Please do not hesitate to contact me with any questions.