By: John A. Hinman and Robert T. Wright Jr.

Legal Backgrounder, Washington Legal Foundation

A debate has raged this year in state legislatures, courts, and Congress over the ability of alcohol producers to directly ship their products to consumers over state lines. The controversy directly implicates the constitutional parameters of the commerce power and the 21st Amendment, regulation of the Internet, and federal versus state power. In the second of a series of papers on this debate, authors Hinman and Wright argue that the 21st Amendment does not empower the states to infringe upon free interstate commerce in wine. By reviewing a series of court decisions resulting from wine consumers’ challenges to restrictive state laws, the paper presents a persuasive legal case that state laws preventing direct shipping of alcohol do little more than protect the current, entrenched distribution system. State interests such as temperance, protection of minors, and tax collection can all be met without forestalling consumers’ free access to wine, the authors conclude. CONTACT: Washington Legal Foundation: http://www.wlf.org

The Chamber of Commerce issued an amicus curiae brief that in support of the petitioners in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, et. al.

The Chamber writes, "This case does not challenge the power of federal agencies to regulate activities that cause the pollution of interstate waterways, their tributaries, or adjacent wetlands. The pollution or filling of wetlands that are connected to navigable waters undoubtedly can have significant impacts on the instrumentalities of interstate commerce (navigable waterways) and interstate commerce itself. Congress accordingly should, and does, have ample authority over these truly interstate and commercial problems.

The case instead presents the question whether the federal government may set land-use policy for 17.6 acres of hydrologically isolated wetlands, whose only connection with interstate commerce is the fact that they are actual or potential landing zones for migratory birds. Under the "migratory bird interpretation" of the U.S. Army Corps of Engineers, the answer to that question is an emphatic yes that puts the federal government in the leading role in land-use decisionmaking for, not just this isolated plot, but every "damp depression" in the nation. The migratory bird interpretation threatens to impose Army jurisdiction over every backyard in the United States…

For reasons described below, both the spirit and letter of the Constitution’s limits on federal power are exceeded by the migratory bird interpretation. At the outset, this Court has long recognized that land-use planning is situated squarely on the State side of the line of demarcation between federal and State responsibilities. The migratory bird interpretation not only prevents States from fulfilling their role as the laboratories for policy innovation, it does so in a context where both this Court’s precedents and the lessons of experience teach that States most often know best.

But even beyond policy implications, the limitless migratory bird interpretation cannot be squared with this Court’s Commerce Clause jurisprudence. As is evident from the attenuated chain of reasoning employed by the court below—a chain so thin that it would permit unfettered federal regulation of all aspects of local affairs—the Corps’ asserted regulatory justification lacks any substantial relation to economic activity of any kind, much less to interstate commerce. The occasional use of a wetland by a migratory bird "by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms." United States v. Lopez, 514 U.S. 549, 561 (1995). Moreover, the fact that this intrusive regulation of non-economic activity has unfortunate economic side-effects cannot be used as a bootstrap to salvage the Corps’ interpretation from constitutional infirmity."

The Center for the Study of Constitutional Law and Government will be presenting a symposium on Federalism and The Supreme Court: The 1999 Term. The symposium will be held Thursday, September 28 at Oklahoma City University School of Law. For further details, see: http://www.okcu.edu/law/SymposiumFederalism.htm.