Amicus Brief: Day v. Henry

Arizona law allows alcohol retailers to ship directly to consumers but only if they have a “physical presence” in the state. This is a clear discrimination against out-of-state businesses.  The Dormant Commerce Clause generally prevents states from impeding interstate commerce, but the Twenty-first Amendment, which repealed Prohibition and empowered states to regulate alcohol in their borders, has always made alcohol regulation a little different than other goods. Pure discrimination against out-of-state businesses, however, is still not allowed.

The Ninth Circuit upheld the law because it deemed the physical-presence requirement as “essential” to the overall three-tier system of alcohol distribution that is common throughout the country. Now petitioning the Supreme Court for certiorari, the Manhattan Institute, joined by the Reason Foundation, has filed a brief urging the Court to review the case. We argue that the physical-presence requirement is not actually “essential” to the three-tier system, thus the underlying assumption of the Ninth Circuit (and other circuits that have used the same reasoning) is incorrect. States effectively use licenses to regulate alcohol, not physical-presence requirements. Moreover, “essential” as a justification is a free-floating and seemingly limitless rationale for upholding government programs.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Jarrett Dieterle is a legal policy fellow at Manhattan Institute.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

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