Posted by Todd Zywicki: WINE WARS, PART 11�SUBSEQUENT LEGISLATIVE ENACTMENTS:
An alternative argument that has been offered is that even if the 21st Amendment does not transfer Congress's commerce clause authority to the states, Congress essentially reconveyed its commerce clause power to the states legislatively through the Webb-Kenyon Act. Thus, the dormant Commerce Clause is said to be irrelevant to this case, because protectionist state laws have been enacted pursuant to an affirmative exercise of Congress's Commerce Clause power, not in contravention of the dormant Commerce Clause. First, as noted earlier, this is clearly not what was initially done through the Webb-Kenyon Act, as the previously quoted colloquy between Sen. Wagner and Sen. Blaine made clear that Congress was affirmatively exercising its Commerce Clause authority to allow the states to apply their police powers to liquor shipped in interstate commerce on the same basis as domestically-produced liquor. It is argued that the enactment of the Twenty-First Amendment Enforcement Act in 2000, 27 U.S.C. �122a, as an amendment to the Webb-Kenyon law, further evidenced this recoveyance of power. By its own terms, however, the Twenty-First Amendment Enforcement Act applies only to a state law "that is a valid exercise of power vested in the States" under the 21st Amendment, and further provides that the act "shall not be construed to grant the States any additional power." 27 U.S.C. �122a(e). This language was designed precisely to preclude the argument now advanced that the Act could be used to enforce discriminatory state laws. This language was a more general statement of the original "Goodlatte" amendment which had passed the House, and which provided, "No State may enforce under this Act a law regulating the importation or transportation of any intoxicating liquor that unconstitutionally discriminates against interstate commerce by out-of-State sellers by favoring local industries, thus erecting barriers to competition and constituting mere economic protectionism." 145 Cong. Rec. 6868; see also 145 Cong. Rec. 6869. Legislative history makes clear that the purpose of the Goodlatte Amendment and the language eventually enacted, was designed specifically to reject the idea that protectionist state laws are consistent with Webb-Kenyon and the 21st Amendment. Congressman Cox for instance stated, "In vindicating the purposes of the 21st Amendment, a State cannot discriminate as mere economic protectionism against other sellers, other producers in the rest of the United States." Id. at 6871. Similarly Congressman Conyers stated, "[The amendment] will make it clear that neither this act nor Webb Kenyon are in anyway designed to supersede any other provision of the Constitution, such as the first amendment or the Commerce clause (including the so-called `dormant' Commerce clause. Id. at 6873. Congressman Kolbe added, "The 21st Amendment was designed to give States the power to regulate alcohol sales within their States, and to ban it altogether, if they choose. It was not designed to give States the power to keep the wine sales of some distributors out while allowing others in." Similar comments were offered by Senate supporters of the language that was finally enacted. Statement of Sen. Feinstein, S. Hrg. 106-141 (March 9, 1999). Indeed, if the states' interpretation of the 21st Amendment were adopted, it would cast into doubt all of Congress's power to regulate interstate commerce in alcohol. Among other things, this could interfere with federal efforts to combat terrorism. For example, a federal provision, passed after the attacks on September 11, 2001, to reduce the number of bulky packages on airlines, permits wineries to ship wine directly to consumers if the wine purchaser "was physically present at the winery" at the time of purchase, is "of legal age to purchase alcohol," and "could have carried the wine lawfully into the State * * * to which the wine is shipped." 27 U.S.C. 124. Consistent with a proper interpretation 21st Amendment, this law respects state laws governing purely local alcohol issues, but regulates the manner in which otherwise lawful alcohol imports can be shipped through interstate commerce in the interest of national security. If the Supreme Court adopts the expansive definition of the 21st Amendment as a tender of plenary power over interstate commerce to the states, however, this anti-terrorism law would likely be unconstitutional. It is remarkable to me, that given the importance of the War on Terrorism, federal officials have not been more alert to recognizing an adverse decision in the wine cases could potentially interfere with the federal government's war on terror. _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
