Today’s guest post is by Tucker Ellis‘ Dick Dean, a longtime friend of the blog and outspoken advocate of using the Dormant Commerce Clause as a one-two punch in certain personal jurisdiction situations. This is his latest update on Dormant Commerce Clause developments. As always, our guest posters are 100% responsible for their writings, entitled to all the credit and any blame.
On June 26, the Supreme Court struck down a Tennessee statute that required two years of residency in order to open a liquor store because it violated the dormant commerce clause. Tennessee Wine and Spirits Retailer Assn. v. Russell Thomas, Executive Director of the Tennessee Alcoholic Beveridge Commission, Case No. 18-96, 2019 WL 2605555, ___S.Ct.___ (June 26, 2019). There was no mention of pharmaceuticals or medical devices, but the decision is an important one for us. Why? The reasoning in the decision applies equally to consent statutes. Bexis recently blogged whether such statutes pass due process muster but the statutes also don’t pass muster under the dormant commerce clause. You get saved from a long exposition of the dormant commerce clause and its application here because Steve McConnell and I have already done that in this blog. Here, discussing Davis v. Farmers Cooperative Equity Co., 262 U.S. 312 (1923), striking down such a statute on commerce clause grounds. Several other posts followed. Here and here.
But there is nothing like a Supreme Court decision applying the clause in a vigorous way to bring this point back to life. The new decision is an ode to the clause. “…the proposition that the Commerce Clause by its own force restricts state protectionism is deeply rooted in our case law.” 2019 WL 2605555, at *6. The decision comes from a 7-Justice majority − written by Justice Alito with only Justices Gorsuch and Thomas dissenting. [Ed. note: An interesting split, as the DCC dissenters are “conservatives,” whereas the only personal jurisdiction dissenter (Sotomayor, J.) is a “liberal.”]
Davis has never been overruled. Tennessee Wine did not discuss it but the ringing endorsement of the clause leaves little doubt but that Davis is still good law.
We should be making two constitutional arguments − not one − in attacking these statutes.