https://www.youtube.com/watch?v=D5bzrb-v9Y0&list=RDMSmel6nRzZQ&index=16

Today, I filed my fifth amicus brief before the United States Supreme Court, this time in Yost v. Miller. The brief supports the Ohio Attorney General’s petition for certiorari while urging the Court to affirm the Sixth Circuit’s decision.

The case presents issues that extend far beyond wine. At stake is whether the Constitution provides a uniform rule governing interstate commerce or whether constitutional rights fluctuate depending on where Americans happen to live.

A Circuit Split Should Not Produce Different Constitutional Rights

The most significant issue presented by this case is the growing circuit split over retailer shipping laws.

A circuit split is more than a disagreement among federal courts. It creates a legal landscape in which constitutional rights vary from one region of the country to another. Today, whether a consumer may purchase wine from an out-of-state retailer—or whether that retailer may lawfully sell to the consumer—depends largely on which federal circuit governs the transaction.

That is fundamentally inconsistent with the purpose of the Commerce Clause.

The Commerce Clause was designed to create a national economic union, not a collection of regional markets governed by different constitutional standards. Likewise, Section 2 of the Twenty-first Amendment should not become a stronger shield against interstate commerce merely because a person resides within the jurisdiction of one federal circuit rather than another.

To illustrate the practical consequences of the split, I use the example of Union City, Ohio, and Union City, Indiana. The state line literally runs down the middle of the community. A retailer selling the same bottle of wine to customers living across the street from one another faces entirely different constitutional outcomes. Under the Seventh Circuit’s decision in Chicago Wine, the Indiana resident cannot receive the shipment. Under the Sixth Circuit’s decision, the Ohio resident can.

The transaction is identical. The product is identical. Only geography changes.

Constitutional rights should not depend upon which side of a street someone calls home.

The Current Legal Landscape Is Hurting the Marketplace

The circuit split also imposes substantial burdens on both retailers and consumers.

Small specialty wine retailers must navigate an increasingly complicated patchwork of conflicting constitutional rules. Rather than operating under a single national standard, they face different legal obligations depending upon the federal circuit in which their customers reside. The result is uncertainty, increased compliance costs, and significant barriers to interstate commerce.

Consumers are equally affected.

Many wines simply are not available through local distribution networks. Consumers often locate those products through specialty retailers in other states, only to discover that the law prevents the transaction from occurring solely because they live on the wrong side of a state line.

The practical result is diminished consumer choice, reduced competition, and a fragmented national marketplace.

Have the Lower Courts Departed from Granholm and Tennessee Wine?

Perhaps the most important legal issue addressed in my brief concerns the methodology employed by several federal courts of appeals.

In Granholm and Tennessee Wine, the Supreme Court established a constitutional framework for evaluating discriminatory state alcohol laws. Yet many lower courts have abandoned that framework in favor of an “essential feature” test that effectively replaces the analysis required by the Supreme Court.

My brief argues that this approach cannot be reconciled with the Court’s precedent.

The brief also addresses the nondiscriminatory alternatives requirement. Several courts have minimized, misunderstood, or altogether bypassed this inquiry. By contrast, the Sixth Circuit carefully applied the analysis the Supreme Court required.

Importantly, Granholm relied upon Maine v. Taylor, the only modern Supreme Court decision in which a facially discriminatory law survived a Commerce Clause challenge. That case established an extraordinarily demanding standard. Nothing in Tennessee Wine suggests the Supreme Court intended to weaken that standard or convert it into a perfunctory exercise.

Whether the Court agrees remains to be seen, but the current confusion among the lower courts demonstrates why Supreme Court review is warranted.

Why Yost v. Miller Matters

The Supreme Court is frequently called upon to resolve conflicts among the federal courts of appeals. This case presents precisely that situation.

Consumers, retailers, wineries, and states all deserve a single constitutional standard governing interstate commerce in alcohol. The Constitution should not mean one thing in Ohio and another in Indiana. Nor should Americans’ economic freedoms depend upon the federal circuit in which they happen to reside.

That is the question presented in Yost v. Miller, and it is why I believe the Supreme Court should grant review.

I look forward to following the case and, hopefully, seeing the Court provide much-needed clarity in an area of constitutional law that has become increasingly fractured.