Amicus Brief in Granholm vs Heald

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As interstate commerce has grown, businesses have used a variety of technological means—from mail-order-catalogs to 1-800 numbers to, most recently, electronic commerce using the Internet—to reach consumers nationwide. E-commerce facilitates the realization of the Founders’ vision of a national common market by permitting even the smallest merchant to reach consumers in every state and by giving consumers the broadest possible choice of products and vendors. As this Court has repeatedly recognized, that market will be destroyed if states are permitted to enact measures that discriminate against interstate commerce in favor of local economic interests.

Michigan’s prohibition on direct sales by out-of-state wineries to Michigan consumers, while simultaneously permitting direct sales by Michigan wineries, is such a discriminatory measure. Under established dormant Commerce Clause doctrine, such measures are constitutional only if the state bears the burden of showing the absence of nondiscriminatory means to advance its legitimate interests. In this case, the state’s asserted interests of ensuring revenue collection and preventing sales to minors do not require discrimination against interstate sales and the attendant obstruction of e-commerce.

The Twenty-first Amendment does not save Michigan’s otherwise unconstitutional discrimination. The assertion that the Twenty-first Amendment trumps the Commerce Clause when the state regulates the importation of wine is untenable and contrary to this Court’s precedents. The Twenty-first Amendment is not a license to discriminate against interstate sales or to protect local merchants from interstate competition. By permitting in-state wineries to make direct sales to consumers, while prohibiting all out-of-state wineries from making such sales, Michigan has exceeded the temperance interests that the Twenty-first Amendment was designed to protect, and its discriminatory regime must fall as offensive to the Commerce Clause.