In June 2019, the U.S. Supreme Court ruled in Tennessee Wine and Spirits Retailers Association v. Thomas that Tennessee’s two-year residency requirement for alcohol retailers was unconstitutional.
This marked the first time since the 2005 Granholm v. Heald decision that the Supreme Court directly addressed the relationship between the 21st Amendment and the dormant Commerce Clause.
While the Tennessee Wine ruling was narrow, what followed was a wave of national litigation targeting states, challenging them to apply the residency holding far more broadly to retail alcohol shipping laws. This effort was an attempt to dismantle regulatory systems that had been in place for decades and distort the carefully worded language of the Supreme Court’s opinion.
In the months and years that followed, boilerplate complaints were filed in Arizona, Illinois, Indiana, Kentucky, Michigan, Missouri, New Jersey, North Carolina, Ohio, Rhode Island, and Texas. Although these cases spanned seven federal circuits, the plaintiffs were consistently represented by the same law firm and attorneys.
Access to the courts is an American right, and there is nothing improper about testing unsettled questions of law. But once courts across the country have repeatedly reached the same conclusion, the public has a legitimate interest in asking: who does this seemingly endless litigation actually serve?
The answer is certainly not the public. After seven years of litigation, exhaustive briefings in courtrooms, legal journals, and industry blogs, eleven states have defended essentially identical constitutional challenges. Nearly every case has produced the same result: District and appellate courts have upheld states’ regulatory authority under the 21st Amendment, and the Supreme Court has consistently declined to review those outcomes.
These lawsuits remain a solution in search of a problem.
Far less attention has been paid to the cost of this litigation. States and taxpayers have spent years funding a defensive effort against legal activists intent on dismantling state regulatory systems that serve legitimate and demonstrable public health and safety interests.
Forcing already overburdened state attorneys general to devote scarce staff time and taxpayer resources to defending repetitive litigation serves no public interest. Most taxpayers would prefer their state attorneys general spend their time investigating fraud, combating violent crime, and protecting consumers rather than defending repeatedly upheld alcohol laws against the same redundant challenges. Those public resources would be better spent combating the hundreds of thousands of illegal alcohol shipments made each year in the United States.
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The legal landscape is no longer uncertain. Courts have repeatedly affirmed the constitutional authority of states to regulate alcohol within their borders. State attorneys general should proactively use the available procedural tools, including motions for sanctions, to discourage this type of vexatious litigation and to recover unnecessary taxpayer costs.
Seven years after Tennessee Wine, the verdict is clear: Taxpayers should no longer be forced to pay for the defense of repetitive litigation over questions the courts have already answered.
John Bodnovich is the Executive Director of American Beverage Licensees, a national trade association representing 12,000 bars, taverns, and package liquor stores across the country.