On June 5th, the state of Ohio filed a challenge to the 6th Circuit’s ruling in Block v. Canepa, which held that Ohio’s discriminatory wine retailer shipping law was unconstitutional for violating the dormant Commerce Clause and that the law did not properly serve health and safety interest.

The State of Ohio filed a cert petition to the U.S. Supreme Court (“SCOTUS”) requesting that they grant cert on this case and decide what is now a circuit split.

The cert petition goes through great lengths to highlight how the 6th Circuit’s ruling creates a 7 to 1 lopsided circuit split and SCOTUS must bring this outlier back in place. This claim becomes dubious when one looks more closely at two of the cases the state’s petition uses, Bridenbaugh v. Freeman-Wilson 227 F.3d 848 (7th Cir. 2000) and Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185 (2d Cir. 2009). Neither case deals with retailer shipping and both stood for the proposition that Granholm applied only to wineries. I would argue that not only are these cases not relevant, that they may even constitute bad law.

Where the petition is going

To be granted cert, four justices need to agree to hear the case. This petition seems targeted at three, Clarence Thomas, Neil Gorsuch, and Amy Coney-Barrett.

The first words in print on the petition state, “This case pits the twenty-first amendment, which appears in the Constitution, against the ‘dormant commerce clause,’ which does not.”

This is a famous phrase used by Seventh Circuit Judge Frank Easterbrook demonstrating his opinion that the Twenty-first Amendment is vastly superior to the Commerce Clause, and that the dormant Commerce Clause is doctrine of little constitutional significance.

A couple paragraphs down the Ohio cert petition states, “Seven circuits that have considered direct-ship restrictions identical to Ohio’s have sided with the provision that “appears in the Constitution”—the Twenty-first Amendment.”

When you look at past court precedents these three justices do not seem to support a strong and robust Commerce Clause.

In Tennessee Wine Gorsuch and Thomas were the lone dissenters and gave great deference at the Twenty-first Amendment at the expense of the dormant Commerce Clause.

In National Pork Producer Council v. Ross all three justices stood together in agreement on the most crucial aspects of this case. In this case these three justices ruled for a state’s exercise of its regulatory power over commerce occurring outside its borders.

The petition takes aim and targets the Court’s Commerce Clause skeptics wing.

Additionally, the petition tries to equate the Twenty-first Amendment with the Tenth Amendment and make the argument that Ohio can exercise its sovereign power expressly reserved to the States under the Twenty-first Amendment. The petition makes the point that the 6th Circuit’s ruling infringes on Ohio’s sovereign powers granted to it under the Twenty-first Amendment. The tone of the argument is that this decision is so bad that it threatens a state’s ability to exercise their constitutional rights.

Conclusion

Cert petitions are not arguments on the merits which comes later. To win the championship, one must qualify for the playoffs. Ohio is attempting to qualify by targeting three and hoping they get 1 out of the other six. Let us see what happens, will Ohio qualify or will they be stuck with a law they never wanted but are required to implement?