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Seems like it’s possible, but don’t expect an overnight shift

Tim Nelson
November 07, 2018

In an age where almost anything can be shipped to our homes in a matter of days (if not hours), the fact that buying booze and having it shipped to you remains such a convoluted process seems puzzling. With Tennessee Wine & Spirits Retailers Association v. Byrd set to appear before the Supreme Court during its next judicial session, some are hopeful that some of the draconian laws governing how alcohol can be sold and shipped across state lines can be undone, or at least updated. But will they?

To figure out what’s going on, we need to first go back 85 years. The 21st Amendment to the US constitution repealed prohibition in 1933, after which individual states recodified their alcohol laws. The only problem is that—with some exceptions— things haven’t changed all that much since then. It’s pretty safe to say that the writers of those laws didn’t anticipate the speed and sophistication with which businesses can conduct interstate commerce in today’s connected, digital age.

Another issue leading to the current situation is the use of a three-tiered system that governs alcohol sales. Laws on the books refer to three distinct groups: producers (vineyards, breweries, and distilleries), wholesalers (who handle distribution), and retailers. In many states, individual end-consumers fall under the retailer classification. That’s a big problem in some states like Tennessee, where a retailer is required to be an in-state resident before they can receive alcohol shipments from producers. It’s all a bit confusing, but the key takeaway is that only 14 states allowed their citizens to receive wine from out-of-state retailers as of late last year.

That’s part of why shipping carriers tend to play it incredibly safe in order to avoid running afoul of regulations. FedEx requires businesses to fill out additional paperwork and incur extra costs in order to ship alcohol, and UPS will only transport alcoholic beverages for “approved customers who are licensed to ship [them].” USPS won’t ship alcohol at all, though you’d think a government owned and operated mail service would be able to get a handle on interstate alcohol regulations. Some business choose to flout the laws anyway, but those who do run the risk of fines or even the loss of their federal alcohol license.

So where does that Supreme Court case come in? Byrd is functionally about interstate alcohol shipment through the lens of a more specific law. ScotusBlog says the issue at hand is “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.” Viewed through a narrow lens, the crux of the case rests on the constitutionality of retailer residence requirements.

Subsequently there are ultimately multiple possible outcomes even in the event that the Supreme Court were to rule against Tennessee’s current regulations. SCOTUS could make a narrowly-applicable decision in the case and only rules against residency requirements. That could still be impactful to a degree, as Wine Spectator points out that 21 other states have similar residency laws on the books. But if—and it feels like it’s a big if—SCOTUS decides to interpret the case more broadly, there’s a chance that Byrd sets a new precedent wherein any bans on out-of-state alcohol retailers would be unconstitutional.

It’s hard to predict how the court might vote in Byrd, given that it feels more likely to be determined by legal wonkery than ideological valence. We can speculate that Brett Kavanaugh would probably love to mail beer from DC to wherever Tobin and Squee live these days, but the proverbial jury is still out for how the other eight Justices might cast their vote.

Even if the court rules that out-of-state bans are unconstitutional, you’ll still want to hold off on shipping any celebratory champagne through the mail for the time being. That new precedent would require states with unconstitutional laws forbidding out-of-state retailers on the books to rewrite them. States could either use the situation as an opportunity to fully deregulate interstate alcohol sales, or potentially restrict things even further through policy language that manages to comply with judicial precedent. There’s really no telling how things might shake out.

There may come a day when we can send and receive our favorite brands of booze across the country, but it doesn’t sound like it’s going to happen overnight. Still, the fact that a relevant case is set to appear before the highest court of the land soon should at least give us some clarity on where things stand. In the meantime, walking to the liquor store isn’t the end of the world.  

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