Amendment 21 — Scope Of The States Section 2 Powers Over Interstate And Foreign Commerce In Alcoholic Beverages

prev | next

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Although Section one of the Twenty-First Amendment repealed nationwide Prohibition, Section two authorized the states to regulate or prohibit the importation, transportation, sale, distribution, and use of alcoholic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](https://www.law.cornell.edu/constitution-conan/amendment-21/scope-of-the-states-section-2-powers-over-interstate-and-foreign-commerce-in-alcoholic-beverages#fn1amd21 " 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 ; . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-21/scope-of-the-states-section-2-powers-over-interstate-and-foreign-commerce-in-alcoholic-beverages#fn2amd21 " 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 . ") Modern cases, however, have recognized that the states’ regulation of alcoholic beverages is limited by the Dormant Commerce Clause doctrine.[3](https://www.law.cornell.edu/constitution-conan/amendment-21/scope-of-the-states-section-2-powers-over-interstate-and-foreign-commerce-in-alcoholic-beverages#fn3amd21 " See . ") 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](https://www.law.cornell.edu/constitution-conan/amendment-21/scope-of-the-states-section-2-powers-over-interstate-and-foreign-commerce-in-alcoholic-beverages#fn4amd21 " See id. ") 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](https://www.law.cornell.edu/constitution-conan/amendment-21/scope-of-the-states-section-2-powers-over-interstate-and-foreign-commerce-in-alcoholic-beverages#fn5amd21 " See . ")

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 ; .

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 .

3

See .

4

See id.

5

See .