1. This case presents important and recurring questions about the intersection of the dormant Commerce Clause and Section 2 of the Twenty-first Amendment. In Granholm v. Heald, 544 U.S. 460 (2005), this Court reaffirmed that "state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause." Id. at 487. And in Tennessee Wine & Spirits Retailers Association v. Thomas, 588 U.S. 504 (2019), the Court reiterated that state alcohol regulation violates the dormant Commerce Clause when it is "aimed at giving a competitive advantage to in-state businesses." Id. at 531. The Court explained that a State's regulation of in-state alcohol distribution will survive constitutional scrutiny only if it "can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground." Id. at 539. Applying those principles, the Court deemed unconstitutional a state law that required an applicant for a license to operate a liquor store to have resided in that State for the prior two years, holding that the provision "expressly discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety" and therefore "violates the Commerce Clause and is not saved by the Twenty-first Amendment." Id. at 540, 543.

The dissenting opinion observed that the Court's decision left open various questions for lower courts, including whether "simple physical presence laws" are constitutional and "[h]ow much public health and safety benefit must there be" for a law to pass muster under the dormant Commerce Clause. 588 U.S. at 556 (opinion of Gorsuch, J.). Since then, the courts of appeals -- including both judges on the Seventh Circuit panel in this case -- have divided on precisely those issues. This case presents an opportunity for the Court to clarify whether a requirement that a retailer establish an in-state physical presence before shipping alcoholic beverages to consumers within that State discriminates against interstate commerce and, if so, whether such a provision can be saved simply because it is a feature of the State's three-tier system for alcohol regulation even if lacks a close relationship to public health or safety.

Whether a state's requirement that wine retailers establish an in-state physical presence before shipping alcoholic beverages to consumers discriminates against interstate commerce under the dormant Commerce Clause and can be justified by the Twenty-first Amendment