WASHINGTON — One hundred years to the day after the ratification of the 18th Amendment, leading to the nation’s 14-year experiment with Prohibition, the Supreme Court considered on Wednesday whether Tennessee may impose significant restriction on liquor sales.
Several justices were deeply skeptical about the law at issue in the case, which says people who want to operate liquor stores in the state must first live there for two years. The law, they said, seemed to have no purpose beyond protecting local business interests from outside competition.
Shay Dvoretzky, a lawyer for a trade association representing the state’s liquor retailers, said there were good reasons for the law.
“Duration facilitates background checks,” he said. “It facilitates investigation and enforcement of the law because somebody who’s been there for a while is more likely to have substantial assets that can be seized, and is less likely to flee at the first sign of trouble.”
In any event, Mr. Dvoretzky said, the 21st Amendment, which ended prohibition in 1933, nonetheless gave states vast power to regulate alcohol. (The amendment says that “the transportation or importation into any state, territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”)
“I don’t think,” he said, “that there is an economic protectionism exception to 21st Amendment.”
The law was challenged by Total Wine, a large retailer, and a Utah couple, Doug and Mary Ketchum, who moved to Memphis in the hope that the weather there would be better for their disabled daughter. A federal appeals court struck down the two-year residency requirement, saying it violated the Constitution by discriminating against newcomers to the state.
Justice Samuel A. Alito Jr. asked Mr. Dvoretzky a series of questions probing just how far states could go in discriminating against people from elsewhere.
“Can a state enact a 10-year residency requirement?” he asked. The question was not hypothetical. Another part of the Tennessee law, also struck down by the appeals court but not defended before the Supreme Court by the trade association, imposed a 10-year residency requirement on license renewals.
Mary and Doug Ketchum, with their daughter, Stacie, challenged Tennesse’s two-year residency requirement for liquor store owners after moving there from Utah.CreditKaren Pulfer Focht/Karen Pulfer Focht, via Associated Press
Justice Alito also asked about a more fanciful law, one that said that “you can’t get a liquor license in Tennessee unless your grandparents were Tennessee residents.”
What about a law, Justice Alito continued, that said in so many words that its only purpose was “economic protectionism”?
Mr. Dvoretzky responded that none of those laws would be barred by the Constitution’s commerce clause, which has been interpreted to prohibit states from discriminating against interstate commerce. He said that other provisions of the Constitution might bar extreme restrictions, but that the 21st Amendment granted states all but unlimited power to regulate sales of alcohol within their borders.
Justice Brett M. Kavanaugh said the text of the amendment did not seem to support Mr. Dvoretzky’s interpretation of it. “Why isn’t that most naturally read to allow states to remain dry and, therefore, ban transportation or importation but not to otherwise impose discriminatory or, as Justice Alito says, protectionist regulations?” Justice Kavanaugh asked.
David L. Franklin, the solicitor general of Illinois, representing 35 states, urged the justices to uphold Tennessee’s law. “The 21st Amendment,” he said, “gives states virtually complete control over how to structure their domestic liquor distribution systems.”
Carter G. Phillips, representing the challengers, said the Tennessee law was plainly unconstitutional. “This statute has no purpose except to be protectionist of the local industries,” he said.
Some justices worried that striking down the law at issue in the case, Tennessee Wine and Spirits Retailers Association v. Blair, No. 18-96, could lead to deregulation of all aspects of interstate liquor sales.
“Why isn’t this just the camel’s nose under the tent?” Justice Neil M. Gorsuch asked. “Isn’t the next business model just to try and operate as the Amazon of liquor?”
Mr. Phillips said that he sought only to challenge the residency requirement and that his clients operated brick-and-mortar stores. Other issues, he said, could be left for another day.
Justice Elena Kagan did not seem persuaded. “Well,” she said, “we’re leaving a lot of things for another day, but they all seem to be demanded by the principles that you’re asking us to adopt.”