This post is about two cases that are currently before the Supreme Court. Both have been argued; we are just waiting for a decision in each. The first case is about whether a state can impose residency requirements on a seller of wine before that seller can sell wine. The second case concerns double jeopardy and what is called the dual sovereign doctrine which can trace its origins back 170 years.
This case posting is in response to a loyal follower’s request. Thank you!
The issue, in this case, is deceptively simple. As SCOTUSblog puts it: “Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time.” In the Tennesse case, do you have to have lived in the state for two years before you get a retail license to sell wine? I say “deceptively simple” because while it looks simple, the case opens up two major areas of constitutional law: what powers do the states have over alcohol sales (and other commerce) and what are the limits to that power?
The 21st Amendment to the constitution (a favorite because it ended Prohibition) gives the states broad powers over alcohol. As Section 2 states:
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
In theory, a state could ban alcohol altogether. But if they allow it to be sold, is there any limit to that power? And this is where the dormant commerce clause comes in. Despite the name (and it does get complicated in its application), the basic concept is quite simple. States can not interfere with interstate commerce to protect their citizens or state. The question most often boils down to when is a regulation of commerce just a mask for protectionism?
The lead plaintiff in the case, Total Wines, argues that the two-year residency requirement is just that: protectionism. (Total Wines makes the point in their brief that it is really 10 years because the one-year license cannot be renewed unless the individual has been a resident for 10 years.) Tennessee (the state) admits as much; they are not actively defending the statute (although they filed a letter siding with the retail association that is defending it) and the state has not enforced the law for six years.
The in-state retailers make essentially two arguments. They argue that the 21st amendment gives very broad powers to the states to regulate alcohol (as opposed to other commerce) and there are practical reasons for the law, mainly that the state does not want to give a retail license to just anyone, particularly out-of-state persons.
While it might look at first that the statute will not survive (it was stuck down in both the district court and the court of appeals) the argument at the Supreme Court (you can read Amy Howe’s summary here) left things more in doubt. While there was plenty of questions on the text and scope of the amendment (Justice Kavanaugh, for example, said it only referred to the transportation, not the sale of liquor), there was also reference to earlier cases of the Supreme Court which seemed to be on the retailers’ side (Justice Breyer, for example, pointed out that the 21st Amendment has been interpreted by the Court to give states virtually unlimited control over alcohol including residency requirements, adding “The history favors the other side,” even if it doesn’t necessarily make sense.
As Amy Howe put it:
This is a hard case to handicap: Justice Ruth Bader Ginsburg was absent, Chief Justice John Roberts said very little, and Justice Clarence Thomas did not say anything at all. Throw in the fact that Tennessee has made only a half-hearted attempt to defend the residency requirements, and it becomes even more difficult to predict exactly what the justices are likely to do.
Argued on January 16, the decision could come down at any time.
Watch this space.
Another loyal reader asked about this one. Thank you!
A well-known part of the Constitution is the Double Jeopardy Clause of the 5th Amendment. That clause, which shows up on police and legal dramas all the time, says:
nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]
At one level, its application is easy. If I am tried in Delaware say for drug possession and am acquited, Delaware cannot try me again for the same crime. But what about the federal government? Can they bring charges for the same crime? Under what is called the dual sovereign doctrine, they can. Gamble is challenging that doctrine.
Gamble was charged both by Alabama and the federal government with possession of a firearm, which as a convicted felon is a crime. Sentenced to one year in Alabama, he argued double jeopardy in the federal court. Being bound by Supreme Court precedent, the district court rejected his claim, sentencing him to four years. The court of appeals agreed. Despite the fact that the doctrine is at least 170 years old, the Supreme Court granted review to determine whether they should overrule the “dual sovereigns” exception to the double jeopardy clause.
The “dual sovereigns” doctrine is really a fancy way of saying that state and federal governments are two different sovereigns and therefore can both prosecute someone for the same conduct without infringing on the double jeopardy clause. They both have their own set of legislatures, criminal statutes, and courts: they are each “sovereigns”. The idea is based on longstanding Supreme Court rulings, going back well over 150 years. Yet there were (at least) four votes to hear this case (remember it takes four justices to grant certiorari, that is, review), so the 150 plus years of precedent did not stop the Court. Also, there is a case from 2016, Puerto Rico v. Sanchez Valle, in which the unlikely combination of Justices Ginsburg and Thomas argued that the dual sovereignty doctrine should be re-evaluated.
The point that Gamble’s attorney made during oral argument essentially was that there is nothing in the wording of the Double Jeopardy Clause or the history of the adoption of the amendment that supports the doctrine. The United States argued that there is no basis to overturn such a long-standing precedent and that to do so would only upset settled law.
This is a case where every argument something going for it. The words “dual” and “sovereign” appear nowhere in the 5th Amendment, yet no one would seriously argue that the states and the federal government are not different sovereigns. Disturbing 170 years of precedent should not be done lightly, but as I have pointed out before in my post on stare decisis, while it is a very worthwhile rule it is not an absolute. And there are real-world concerns. Are defendants really, in fact, being charged with the exact same crime (a question asked by Justice Breyer)? And since we are talking about sovereigns, what about foreign countries? What if a terror suspect is acquited in a foreign court. Does that mean, if the doctrine is done away with, that he could not be prosecuted in the United States (Justices Alito, Kavanaugh and Kagan)?
From Amy Howe’s review of the argument, it does not appear that there are five votes to overturn the dual sovereign doctrine, although (and an oral argument can be deceiving) there do appear to be three. Deciding the case, argued on December 6, appears to be taking some time.
Next post: A February of Criminal Law