Wine and the Commerce Clause

Granholm v. Heald, which the Supreme Court handed down today, has an interesting lineup: 5-4, with Kennedy/Ginsburg/Souter/Scalia/Breyer in the majority. (I wonder how often, if ever, a majority opinion has been composed of those 5 alone?) The question was whether states can ban the direct sale of wine from out-of-state vineyards while permitting it from in-state vineyards. Kennedy’s opinion, which struck down the law, seems quite clearly correct to me. Given that these laws are discriminatory protectionism directly related to the channels of interstate commerce, there should be a strong presumption that they’re unconstitutional. And Kennedy is correct that there’s no plausible police powers rationale that would overcome this presumption; if direct sales would lead to an increase in teenage alcoholism, this would seem to apply equally to in-state and out-of-state distribution. (And, of course, it’s not particularly plausible that teenagers looking to get drunk will be buying expensive craft wines over the internet.) My one caveat is that Thomas’ dissent relies heavily on a federal statute that he interprets as permitting states to pass such regulations. I’m not persuaded, but someone more familiar with the law may make a more convincing case. Until then, I think that given the presumptive unconstitutionality of such a state statute Congressional approval would have to be considerably more explicit.

The other reason to oppose the decision would be that more willingness to enforce the commerce clause is not in the long-term interests of progressives. This is possible, but I don’t see a slippery slope here. First of all, Lopez already opened the door; I don’t think an extra case matters very much. Secondly, there really isn’t any way that this case can be used to strike down, say, state labor or safety regulations, which generally don’t directly restrict the channels of interstate commerce, and which generally don’t (and shouldn’t) make distinctions between in-state and out-of-state employers doing business in the state. I think this decision is a good one, and don’t see it having any negative ancillary effects.