Quote:
Originally posted by Atticus Grinch
I'd have to agree that the 21st Amendment places alcohol on different footing from the general Commerce Clause analysis, because it does not merely repeal Amendment 18. Section 2 of the 21st Amendment gives power to the states to ban any transportation or importation "in violation of the laws" of that state or territory. Given the poor way Amendment 21 is drafted, I doubt even Congress has the power to occupy the field and lift state controls on importation.
Bad policy, bad economics, but not unconstitutional.
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Perhaps. The better argument, I think, is that that the repeal permits states to regulate alcohol sales within the state generally (by, say, enacting blue laws, taxing, or banning sales altogether), not discriminate against out-of-state suppliers by, basically, banning out-of-state transactions, except to the extent that it furthers the laws of general application in the state (e.g.: a dry state does not need to permit out of state imports just because it is interstate commerce). Or: you have two constitutional "mandates," one clear the other (perhaps) implied. At best this leads to a balancing test, and there isn't really a colorable public-interest justification for the discrimination.
Ultimately, as with so much, I imagine it will come down to (i) who has the better lobby, (ii) whether the repubs decide it is worth it to make a large concilliatory economic gesture towards CA, and (iii) which political groups decide the wine-drinking-version of the elite are their natural constituency and therefore the fight is a useful symbolic overature. I'm not sure where any of that comes down.
