Twenty-First Amendment, Section 2:

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.

Although Section one of the Twenty-First Amendment repealed nationwide Prohibition, Section two authorized the states to regulate or prohibit the importation, transportation, sale, distribution, and use of alcoholic beverages within their borders.1 Questions about the extent of the states’ authority to regulate beverages imported from other states or a foreign country have played a prominent role in the Supreme Court’s Twenty-First Amendment jurisprudence.

In its early decisions interpreting the Twenty-First Amendment, the Supreme Court held that states could adopt legislation discriminating against alcoholic beverages imported from other states in favor of those of domestic origin without violating the Commerce Clause.2 Modern cases, however, have recognized that the states’ regulation of alcoholic beverages is limited by the Dormant Commerce Clause doctrine.3 This doctrine restricts the states’ power to discriminate against imported products and other out-of-state economic interests, including those of consumers, producers, and retail liquor store license applicants.4 The Supreme Court has also held that the Foreign Commerce Clause and Import-Export Clause restrain the states’ power to regulate international trade in alcoholic beverages, including imports and exports.5

Footnotes

1

U.S. Const. amend. XXI, § 2; Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 31–32 (U.S. June 26, 2019). Congress may exercise its positive Commerce Clause power to regulate some aspects of commerce in alcoholic beverages. See Amdt21.S2.10 State and Federal Regulation of Alcohol Sales; Amdt21.S2.11 State and Federal Regulation of Minimum Drinking Age.

2

E.g., Heublein, Inc. v. S.C. Tax Comm’n, 409 U.S. 275, 283–84 (1972) ( “[A] State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.” (quoting Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330 (1964)); see also Amdt21.S2.2 Overview of State Power over Alcohol and Discrimination Against Interstate Commerce.

3

See Amdt21.S2.2 Overview of State Power over Alcohol and Discrimination Against Interstate Commerce.

4

See id.

5

See Amdt21.S2.5 Imports, Exports, Foreign Commerce, and Alcohol.