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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, an

by 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."

by avar 9y ago

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."