Twenty-First Amendment, Section 2:

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.

In addition to empowering Congress to enact federal laws, the Commerce Clause in Article I of the Constitution limits the states’ authority to regulate interstate commerce.1 Absent contrary federal legislation, states generally cannot discriminate against interstate commerce.2 Nonetheless, in its early decisions interpreting Section two of the Twenty-First Amendment, the Supreme Court held that the states could adopt legislation discriminating against imported alcoholic beverages in favor of those of domestic origin without violating the Commerce Clause.3 Because Section 2 of the Amendment authorized states to prohibit all imports of alcoholic beverages, the Court reasoned that states could impose “lesser” forms of regulation on such imports, including discriminatory regulations and taxes.4 Modern cases, however, have recognized that state regulation of alcoholic beverages is limited by the Dormant Commerce Clause doctrine, which prohibits states from discriminating against interstate commerce.5

Footnotes

1

For more on the dormant aspects of Congress’s Commerce Clause power, see .

2

Id.; Nat’l Pork Producers Council v. Ross, No. 21-468, slip op. at 7, 9–17 (U.S. May 11, 2023). For more information on the Supreme Court’s analytical framework for evaluating Dormant Commerce Clause challenges to state laws, see .

3

See, e.g., Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395, 395–98 (1939) (upholding against a Commerce Clause challenge a Missouri law that banned state licensees from transporting, importing, possessing, purchasing, receiving, or selling alcoholic beverages manufactured in a state that discriminated against liquor produced in Missouri); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391, 392–94 (1939) (determining that a retaliatory Michigan law that banned the sale of imported beer from states that discriminated against Michigan-produced beer did not violate the Dormant Commerce Clause doctrine because, after the Twenty-First Amendment’s ratification, “the right of a state to prohibit or regulate the importation of intoxicating liquor [was] not limited by the Commerce Clause” ); State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 60–63 (1936) (upholding a California law that imposed a license fee on wholesale importers of beer and concluding that the Twenty-First Amendment authorized each state “to forbid all importations which do not comply with the conditions which it prescribes” while rejecting the argument that a state “must let imported liquors compete with the domestic on equal terms” ). Because the California law challenged in Young’s Market also imposed a higher license fee on domestic manufacturers of competing liquor products, the Supreme Court’s conclusion that the Twenty-First Amendment authorized the states to discriminate against imported products could be characterized as nonbinding dicta. See id. at 62–63 (stating, elsewhere in the opinion, that the fee “would be a[n unconstitutional] direct burden on interstate commerce” in the Twenty-First Amendment’s absence and noting that “the case does not present a question of discrimination prohibited by the commerce clause” ) (emphasis added). For a discussion of when state laws discriminating against imported beverages might violate equal protection principles, see .

4

E.g., Young’s Market, 299 U.S. at 62 (indicating that a state could lawfully prohibit the importation of alcoholic beverages while allowing the sale of domestically manufactured beverages). See also Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138–39 (1939) ( “The Twenty-first Amendment sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause.” ).

5

See, e.g., Tenn. Wine and Spirits Retailers Ass’n. v. Thomas, No. 18-96, slip op. at 23 (U.S. June 26, 2019); Granholm v. Heald, 544 U.S. 460, 487 (2005). Dormant Commerce Clause principles do not prohibit a state from imposing reasonable regulatory requirements on “through shipments” of alcoholic beverages in order to prevent the beverages’ diversion to local markets. E.g., Gordon v. Texas, 355 U.S. 369, 369 (1958) (per curiam) (citing the Twenty-First Amendment when summarily affirming a Texas court’s judgment upholding the state’s imposition of a tax on the possession of rum in transit from Mexico to North Carolina); Carter v. Virginia, 321 U.S. 131, 132–34,137–38 (1944) (rejecting, in the absence of contrary federal law, a Dormant Commerce Clause challenge to the Virginia Alcoholic Beverage Control Act and its implementing regulations that required carriers engaged in through-shipments to use the most direct route, carry a bill of lading describing that route, and post a $1,000 bond conditioned on lawful transportation, among other requirements); Duckworth v. Arkansas, 314 U.S. 390, 391–96 (1941) (upholding against a Dormant Commerce Clause challenge the application of an Arkansas state law that required a company shipping distilled spirits through the state from Illinois for delivery in Mississippi to obtain a permit for a small fee as a legitimate exercise of the state’s inherent police power to prevent diversion of shipments to the local market); see also Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 329–34 (1964) (holding that a state could not totally prohibit the shipment of imported alcoholic beverages through the state for sale at an airport to departing travelers under the supervision of federal customs authorities when the beverages were destined for delivery to the travelers upon their arrival in foreign countries and the state had “not sought to regulate or control the passage of intoxicants through [its] territory in the interest of preventing their unlawful diversion into [its] internal commerce” ). For a discussion of Supreme Court cases addressing states’ regulation of “through shipments” destined for federal areas within state boundaries, see .