Burke Craighead (Harvard University – Harvard Law School) has posted On a Collision Course: The Twenty-First Amendment, the Dormant Commerce Clause, and Physical Presence Laws on SSRN. Here is the abstract:
The Supreme Court's most recent Twenty-First Amendment case, Tennesse Wine & Spirit Retailers Ass'n v. Thomas, has cast doubt on one, longstanding form of alcohol regulation: physical presence laws. These laws, which require a licensee to maintain a physical location within the state, have a historical pedigree dating to the ratification of the Twenty-First Amendment's section 2, which prohibits the importation of alcohol into a state in violation of the state's laws. However, the Court has increasingly applied the dormant commerce clause to alcohol regulations, narrowing the force of section 2. This Article is the first to raise the alarm bells that the dormant commerce clause is on a collision course with section 2 of the Twenty-First Amendment in the realm of physical presence laws. To that end, this Article examines how the Court got here—from starting with a broad reading of section 2 to eventually cabining it to the most limited of circumstances in the name of the dormant commerce clause. It then offers a number of possible ways the collision could occur (and could be avoided). Despite today's increasingly originalist Court, the original meaning of section 2 has been lost. This Article offers a way to reclaim it in the context of physical presence laws.
Recommended.