In my amicus brief to the United States Supreme Court, I attacked the Eighth Circuit’s analysis in Sarasota Wine Market, which upheld a discriminatory state liquor law, because the law protected an essential element of the three-tier system and hence was precluded from a Commerce Clause challenge. I will provide a condensed version of my analysis and demonstrate where the essential element test as applied by the Eighth Circuit and now a North Carolina District Court decision (b-21 Wines NC decision) miserably fails in its constitutional analysis.
The Supreme Court through a series of cases from Bacchus, Granholm, and Tennessee Wine, required that a discriminatory state law face a rigorous Commerce Clause analysis. To uphold a discriminatory law the Supreme Court requires a state to demonstrate through evidence, why it was necessary to discriminate and that there were no reasonable nondiscriminatory alternatives available.
The Eighth Circuit (and now a North Carolina District Court) precluded a Commerce Clause analysis and upheld a discriminatory state liquor laws based on these laws protecting an essential element or core provision of the three-tier system.
These two lower court decisions cut the legs out from these long-held Supreme Court precedents and develops a new legal theory on how a state discriminatory law should be judged.
The essential element test fails under legal scrutiny
These Court (8th Circuit and NC. District Court) decisions will sink or swim based on whether requiring a retailer maintain physical presence/residency and requiring that a retailer purchase product from an in-state wholesaler, constitutes essential elements of maintaining a three-tier system.
Problematically, these two court decisions failed to adhere to long held Supreme Court principles.
First, in a series of decisions, the Supreme Court made clear that § 2 of the Twenty-First Amendment does not abrogate the Commerce Clause. 
These Courts failed to address these long-held principles in their decisions and instead abrogated the Commerce Clause. The failure to address the abrogation issue and provide a reasonable analysis by the Court was reckless jurisprudence that usurped the Supreme Court’s power.
Second, the Court failed to apply the Supreme Court’s Tennessee Wine test for determining what constitutes an essential element. Under Tennessee Wine a durational residency was not an essential element of the three-tier system because many states operate a regulatory system without a durational residency requirement.
These courts indicated that residency, physical presence, and a requiring a retailer purchase product from an in-state wholesaler constituted essential elements of the three-tier system, and protecting these essential elements shielded a discriminatory state liquor law from a Commerce Clause analysis.
When the Tennessee Wine essential element test is applied to these decisions, these decisions’ legal reasoning of what constitutes an essential element falls apart.
Under Tennessee Wine, a durational residency requirement was not deemed essential because numerous regulatory schemes operated without a durational residency requirement. In other words, taking out a durational residency requirement would not lead to the destruction of the three-tier system or the state’s regulatory system.
Applying the Tennessee Wine essential element test to the facts at hand, there are 15 states and the District of Columbia which allow wine retailer shipping, where the retailer does not have residency or physical presence, nor do they purchase product from an in-state wholesaler. Although these states allow out-of-state wine retailer shipping to occur, there is no evidence that it has a major impact on these 15 states running a well-regulated three-tier system.
Under Tennessee Wine if a system can operate a well-regulated three-tier system without a regulatory element, then that element does not constitute an “essential element” of the three-tier system. These two decisions failed to perform an elementary analysis and imposed their view on what constitutes the law, instead of the Supreme Court’s view on what constitutes the law.
Laws which allow in-state retailers to ship product to their residents, but denying this same privilege to out-of-state retailers are facially discriminatory that is indisputable. The controversy lies in whether a state can justify these discriminatory laws. The Supreme Court in numerous decisions held that a discriminatory law must adhere to a rigorous Commerce Clause analysis. In the past Circuits have challenged this rigorous Commerce Clause analysis, and the Supreme Court has never endorsed a challenge or a change to its rigorous Commerce Clause analysis. In these cases, the Circuits indicated that a Commerce Clause analysis was not necessary because Granholm was limited to producers and that the three-tier system was unquestionably legitimate. Tennessee Wine was heard by the Supreme Court because there was a difference of opinion on whether Granholm was limited to producers or whether it was widely applied. The Supreme Court interpreted Granholm broadly and served up another decision where the Court’s Commerce Clause powers are broad.
Sarasota Wine Market attempts to throw another Commerce Clause preclusion test into the mix. It fails to address long held Supreme Court legal precedents and it fails to correctly apply Supreme Court precedent.
Time will tell whether the Supreme Court will grant cert to a challenge to the Eighth Circuit’s decision, the oddsmakers tell us, this is a long shot.
But inaction by the Court will lead to years of muddled legal doctrine. The Eighth Circuit created poor legal doctrine, the North Carolina District Court followed its lead, and bad decisions may grow out of this doctrine.
Time for the Supreme Court to take back its power and announce how the Commerce Clause is suppose to operate.
 Sarasota Wine Mkt. Schmitt, 987 F.3d 1171 (8th Cir. 2021)
 B-21 Wines, Inc. v. Guy, 3:20-cv-00099(W.D.N.C., July 9, 21)
 Granholm v. Heald, 544 U.S. 460, 487 (2005); Hostetter v. Idlewild Liquor Cor, 377 U.S.324(1964); Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691 (1984); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980)
 Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185(2d. Cir. 2009); Wine Country Gift Baskets.com v. Steen, 612 F.3d 809 (5th Cir. 2010); Southern Wine & Spirits v. Alcohol & Tobacco Control, 731 F.3d 799 (8th Cir. 2013)
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