5 ms·

I don't understand. How is this not a straightforward violation of the Interstate Commerce Clause?

mikeash 9y ago
The 21st Amendment (which repealed prohibition) explicitly grants states the right to regulate alcohol imports and possession.
- avar 9y ago
  Even if that weren't the case, it says: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; I.e. not that the Federal government must regulate interstate commerce, merely that it has the power to do that, and even if it said that the commerce must be regulated it could still be regulated to the effect that you couldn't e.g. sell across state lines. But yes, the reason the regulation is different for alcohol than for other goods is ostensibly the 21st.
  - jayess 9y ago
    But also see "dormant commerce clause."
    - sandworm101 9y ago
      I spy a law student. The DCC is the stuff of conlaw nightmares.
  - mikeash 9y ago
    I’m not sure what you’re saying here. It’s not that the feds must somehow regulate interstate commerce, it’s that the states can’t. The 21st carves out an exception.
    - avar 9y ago
      I'm pointing out that the states forbidding commerce across state lines is not a violation of the commerce clause per-se. Rather it's a violation of how the federal government has chosen to use the rights it's granted by the commerce clause. I.e. it's just the academic point that it's not inevitable that the Federal government uses the power of the CC to enforce free trade between states, that's just how it's chosen to implement it. I.e. there could be an alternate timeline of the US where the CC enforces the ability of individual states to impose interstate tariffs up to some threshold, similar to how the EU manages agriculture quotas within the single market.
      - mikeash 9y ago
        Meaning that, pre-21st, the states could have regulated this if there was a federal law saying they could? Or perhaps merely if there was no federal law saying they couldn't?
        avar 9y ago
        I may be wrong about this, but my understanding of the CC is that if say Nevada were to enact a law saying that sales to California were subject to tariff they wouldn't be found to be in violation of the CC. Instead they'd be found in violation of some federal code that the government could enact because of the CC. I.e. the CC isn't some clause saying that free trade between states must be respected at all cost (sans the 21nd). Otherwise why would there be a federal drug law on the basis of the CC? That's a prohibition of the sale of certain goods on the back of prohibiting sales across state lines on the back of the CC. Hence the indirect reply to SeanLuke upthread. This is not a violation of the CC, but of some federal statute enacted on the basis of the CC. The distinction matters because if the CC isn't an amendment that ensures free trade the federal government could just as well use it to ensure trade restrictions between states as free trade, which it mostly does today.
  - tomohawk 9y ago
    When interpreting a text, and it appears that two statements appear to be in conflict, the more specific statement is to be followed. The interstate commerce clause gives Congress the power to regulate (make normal) commerce between the states, removing the power of states to impose tarrifs or other barriers to trade. This was a big problem at the time. The 21st amendment specifically makes an exception to this general clause in the case of intoxicating spirits.
    - CalChris 9y ago
      In the case of Amendments, it isn't the more specific but rather the more recent. So the 21st carves out an exception in the Commerce Clause, Article I, Section 8, Clause 3. Otherwise, yeah, the Articles of Confederation weren't working.
      - neekburm 9y ago
        This was the crux of state regulators' arguments in Granholm v. Heald, and it failed there. From Wikipedia: "The context of the 21st Amendment, they wrote, was to return to the status quo that existed before Prohibition, making it clear that the states had the power to regulate alcohol however they wished, including banning alcoholic beverages entirely within the state if desired. Before Prohibition, the states did not have the power to violate the Dormant Commerce Clause, and the 21st Amendment was not intended to grant them this power."
wyager 9y ago
You can’t “violate” the interstate commerce clause; it grants powers, doesn’t limit them. (It, along with “necessary and proper”, have been used to justify just about every activity the federal government has done.)
- deleted 9y ago
  [deleted]
- hexane360 9y ago
  So many people get this backwards, although I think some of this is the Constitution's fault. Originally it was a list of rights the government had, with the understanding that the states retained the rest. Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. Of course in practice we've read between the lines a lot with the original constituion, so it makes some sense that we also set some hard limits to what we can't do. But still, it makes it really confusing and leads to a lot of "interesting" legal beliefs by people who aren't familiar.
  - marcoperaza 9y ago
    >Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. I don't think this is true even for the strictest originalist interpretation possible. Without the Bill of Rights, Congress and the President would have much more expansive power in their creation and especially enforcement of law. The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. The major function of the Bill of Rights is to draw lines around those powers, lines that perhaps existed in the common law, but that could have been altered by Act of Congress in the absence of a constitutional provision. There are also parts of the Bill of Rights which do constraint Congress's enumerated powers. For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. It could prohibit the publishing of certain newspapers across state lines, for instance. The First Amendment prevents that kind of thing.
kazinator 9y ago
How can anyone not understand something without which an iconic, key piece of American culture would have had no basis? I'm thinking of Smokey and The Bandit, of course.
- coldtea 9y ago
  Thanks to them having been born in a future that doesn't even know what Smokey and the Bandit is, and where Pedro Pascal is their Burt Reynolds.
the_watcher 9y ago
Alcohol has existed outside the Commerce Clause since Prohibition, as outlawing its sale was done via Constitutional amendment, rather than legislation. Same with repeal. Amendments supersede reserved Congressional authority. The result of this is that regulations on the sale and distribution of alcohol operate entirely differently than any other American industry (and is particularly vulnerable to regulatory capture). For example, try buying a Texas beer (in a store or bar) outside of Texas not called Shiner or Lone Star. It's very difficult, as Texas laws make it difficult to impossible for craft brewers to export across state lines. The biggest fans of those laws? Shiner and Lone Star.

The 21st Amendment (which repealed prohibition) explicitly grants states the right to regulate alcohol imports and possession.

avar 9y ago
Even if that weren't the case, it says: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; I.e. not that the Federal government must regulate interstate commerce, merely that it has the power to do that, and even if it said that the commerce must be regulated it could still be regulated to the effect that you couldn't e.g. sell across state lines. But yes, the reason the regulation is different for alcohol than for other goods is ostensibly the 21st.
- jayess 9y ago
  But also see "dormant commerce clause."
  - sandworm101 9y ago
    I spy a law student. The DCC is the stuff of conlaw nightmares.
- mikeash 9y ago
  I’m not sure what you’re saying here. It’s not that the feds must somehow regulate interstate commerce, it’s that the states can’t. The 21st carves out an exception.
  - avar 9y ago
    I'm pointing out that the states forbidding commerce across state lines is not a violation of the commerce clause per-se. Rather it's a violation of how the federal government has chosen to use the rights it's granted by the commerce clause. I.e. it's just the academic point that it's not inevitable that the Federal government uses the power of the CC to enforce free trade between states, that's just how it's chosen to implement it. I.e. there could be an alternate timeline of the US where the CC enforces the ability of individual states to impose interstate tariffs up to some threshold, similar to how the EU manages agriculture quotas within the single market.
    - mikeash 9y ago
      Meaning that, pre-21st, the states could have regulated this if there was a federal law saying they could? Or perhaps merely if there was no federal law saying they couldn't?
      - avar 9y ago
        I may be wrong about this, but my understanding of the CC is that if say Nevada were to enact a law saying that sales to California were subject to tariff they wouldn't be found to be in violation of the CC. Instead they'd be found in violation of some federal code that the government could enact because of the CC. I.e. the CC isn't some clause saying that free trade between states must be respected at all cost (sans the 21nd). Otherwise why would there be a federal drug law on the basis of the CC? That's a prohibition of the sale of certain goods on the back of prohibiting sales across state lines on the back of the CC. Hence the indirect reply to SeanLuke upthread. This is not a violation of the CC, but of some federal statute enacted on the basis of the CC. The distinction matters because if the CC isn't an amendment that ensures free trade the federal government could just as well use it to ensure trade restrictions between states as free trade, which it mostly does today.
- tomohawk 9y ago
  When interpreting a text, and it appears that two statements appear to be in conflict, the more specific statement is to be followed. The interstate commerce clause gives Congress the power to regulate (make normal) commerce between the states, removing the power of states to impose tarrifs or other barriers to trade. This was a big problem at the time. The 21st amendment specifically makes an exception to this general clause in the case of intoxicating spirits.
  - CalChris 9y ago
    In the case of Amendments, it isn't the more specific but rather the more recent. So the 21st carves out an exception in the Commerce Clause, Article I, Section 8, Clause 3. Otherwise, yeah, the Articles of Confederation weren't working.
    - neekburm 9y ago
      This was the crux of state regulators' arguments in Granholm v. Heald, and it failed there. From Wikipedia: "The context of the 21st Amendment, they wrote, was to return to the status quo that existed before Prohibition, making it clear that the states had the power to regulate alcohol however they wished, including banning alcoholic beverages entirely within the state if desired. Before Prohibition, the states did not have the power to violate the Dormant Commerce Clause, and the 21st Amendment was not intended to grant them this power."

wyager 9y ago

You can’t “violate” the interstate commerce clause; it grants powers, doesn’t limit them. (It, along with “necessary and proper”, have been used to justify just about every activity the federal government has done.)

deleted 9y ago
[deleted]
hexane360 9y ago
So many people get this backwards, although I think some of this is the Constitution's fault. Originally it was a list of rights the government had, with the understanding that the states retained the rest. Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. Of course in practice we've read between the lines a lot with the original constituion, so it makes some sense that we also set some hard limits to what we can't do. But still, it makes it really confusing and leads to a lot of "interesting" legal beliefs by people who aren't familiar.
- marcoperaza 9y ago
  >Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. I don't think this is true even for the strictest originalist interpretation possible. Without the Bill of Rights, Congress and the President would have much more expansive power in their creation and especially enforcement of law. The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. The major function of the Bill of Rights is to draw lines around those powers, lines that perhaps existed in the common law, but that could have been altered by Act of Congress in the absence of a constitutional provision. There are also parts of the Bill of Rights which do constraint Congress's enumerated powers. For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. It could prohibit the publishing of certain newspapers across state lines, for instance. The First Amendment prevents that kind of thing.

kazinator 9y ago

How can anyone not understand something without which an iconic, key piece of American culture would have had no basis? I'm thinking of Smokey and The Bandit, of course.

coldtea 9y ago
Thanks to them having been born in a future that doesn't even know what Smokey and the Bandit is, and where Pedro Pascal is their Burt Reynolds.

the_watcher 9y ago

Alcohol has existed outside the Commerce Clause since Prohibition, as outlawing its sale was done via Constitutional amendment, rather than legislation. Same with repeal. Amendments supersede reserved Congressional authority. The result of this is that regulations on the sale and distribution of alcohol operate entirely differently than any other American industry (and is particularly vulnerable to regulatory capture). For example, try buying a Texas beer (in a store or bar) outside of Texas not called Shiner or Lone Star. It's very difficult, as Texas laws make it difficult to impossible for craft brewers to export across state lines. The biggest fans of those laws? Shiner and Lone Star.