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Irish Liquor Lawyer files U.S. Supreme Court amicus brief

Irish Liquor lawyer filed a U.S. Supreme Court amicus brief supporting the cert petition which challenges the Fourth Circuit’s decision, in B-21 Wines v. Guy, that upheld North Carolina’s discriminatory wine retailer shipping laws.

Case for a circuit split

The petition makes the claim that the Fourth Circuit’s decision creates a circuit split, as it is a radical departure from the 7th Circuit’s decision in Lebamoff v. Rauner.

The circuit split exists on the issue of whether or not a state must present concrete evidence to sustain its claim that a protectionist law that would otherwise violate the Commerce Clause is justified on nonprotectionist health or safety grounds. The Fourth Circuit did not require the use of concrete evidence to sustain a discriminatory law from a Commerce Clause challenge.

In Lebamoff v. Rauner, the 7th Circuit held that a lower court decision that upheld a discriminatory law on health and safety grounds was incorrectly decided, and the case was remanded back, so that a record could be developed, and evidence provided to back up the health and safety claims.

These two decisions represent diametrically opposed views

On one hand, the Seventh Circuit requires a state to build a record and provide evidence to justify discrimination. On the other hand is the Fourth Circuit, which deems that § 2 of the Twenty-First Amendment can authorize discrimination based on a legitimate state interest, and thus building a record or providing concrete evidence is not necessary to authorize discrimination. Problematically, any state within the Seventh Circuit would be required to follow an altogether different legal standard than a state within the Fourth Circuit.

Misapplying and ignoring Tennessee Wine and Granholm

The Fourth Circuit’s decision authorizes discrimination by misapplying legal doctrines from both Tennessee Wine v Thomas and Granholm v Heald. The Fourth Circuit’s majority held that under Tennessee Wine, § 2 of the Twenty-First Amendment authorizes discrimination when it is necessary to protect an essential feature of the three-tier system. The court explained that maintaining the separation of tiers is an essential feature of the three-tier system, and that if out-of-state retailers were permitted to ship wine into North Carolina that was not first purchased from in-state wholesalers, this would allow the three-tier system to be bypassed, essentially destroying the three-tier system’s separation of tiers. 

In Tennessee Wine, this Court had already discussed the essential feature test and determined that durational residency requirements were not an essential feature of the three-tiered scheme, because other states’ regulatory schemes operate without a durational residency, or any residency requirement whatsoever. There are presently fifteen states plus the District of Columbia that allow out-of-state retailers to ship to their residents without maintaining a physical presence in state, and these jurisdictions still maintain a three-tier system. The Fourth Circuit applies an essential element test that does not satisfy the standards set under Tennessee Wine.

Fourth Circuit’s use of Granholm “unquestionably legitimate” principle can’t legally justify discrimination

The majority below, failing the Tennessee Wine essential feature test, tries to justify discrimination by relying on Granholm’s endorsement of the three-tier system as “unquestionably legitimate”. Under the Fourth Circuit’s view, the legitimacy of the three-tier system allows the states to setup a discriminatory system where it requires a product be funneled through a state licensed wholesaler before being sold by a retailer. Since it is impossible for an out-of-state retailer to purchase a product from a state licensed wholesaler, this would unreasonably preclude the out-of-state retailer from accessing North Carolina consumers via direct shipping.

The Fourth Circuit’s reliance on Granholm’s “unquestionably legitimate” dicta to justify discrimination is actually at odds with the Granholm holding. We would suggest this Court never intended the “unquestionably legitimate” concept to justify discrimination. Granholm mentioned a state’s power to control a product through a three-tier system, after it already concluded the shipping law was discriminatory and was not saved by the Twenty-First Amendment. Whether a state can require a product to be funneled through a three-tier system had no bearing on judging whether the discriminatory laws at issue were constitutionally permissible. The “unquestionable legitimate” mention was dicta, not doctrine, nor a part of the central holding. Yet the Fourth Circuit incorrectly takes it upon itself to transform legal dicta into legal doctrine.

Also of considerable importance is the Fourth Circuit’s avoidance of this Court’s well-established analytical framework for evaluating discriminatory state alcohol laws. This Court’s three-part analysis requires lower courts to 1) determines whether a law is discriminatory; 2) whether concrete evidence has been offered by the state in showing the law advances a legitimate state interest; and 3) whether there exists any non-discriminatory alternatives to the discriminatory law. The Fourth Circuit decision does not engage in parts 2 or 3 of the analysis.


The U.S. Supreme Court inexplicably keeps passing on cases that pervert its legal doctrines.

The Court’s silence allows lower courts to roam farther away from establish legal doctrine to the point where it is becoming ignored.

Silence from the Supreme Court has allowed Twenty-First Amendment/Commerce Clause jurisprudence to become something unrecognizable from Supreme Court precedent and legal principles.

The Circuit Court departures are becoming starker in each passing case.

This departure from the Fourth Circuit represents the farthest decision away from the Court’s legal nucleus.

As a legal outlier it has come in conflict with another Circuit on whether concrete evidence is required to justify discrimination.

With the circuit split and the destruction of Supreme Court legal principles, it is time for the U.S. Supreme Court to step forward and make its voice heard.

Continued silence by the Supreme Court, runs the risk of somebody else dictating legal precedent in the Twenty-First Amendment/Commerce Clause issue.