A Circuit-Splitting Headache: The Hangover of the Supreme Court's Twenty-First Amendment Jurisprudence

Abstract

Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000). Bainbridge v. Turner, 311 F.3d 1104 (11 th Cir. 2002). In recent years, many small wineries have taken advantage of the Internet as a sales tool, creating challenges to existing state laws that prohibit the direct shipment of alcohol to consumers. Were these businesses shipping nearly any other product, the constraints of the "dormant Commerce Clause" of the federal constitution would prevent states from regulating such transactions. The Twenty-first Amendment, however, grants the states unique powers when the object of regulation is alcoholic beverages. The extent to which this grant creates an exception to the dormant Commerce Clause, along with the manner in which that exception may be used, has been the subject of two recent cases in the Seventh and Eleventh Circuits. In Bridenbaugh v. Freeman- Wilson, the Seventh Circuit upheld an Indiana law prohibiting the direct shipment of alcohol to Indiana consumers by anyone in the business of selling alcohol in another state or country. Yet shortly thereafter in Bainbridge v. Turner, the Eleventh Circuit explicitly rejected the Seventh Circuit's approach and greatly limited the scope of Florida's regulatory powers under the Twenty-first Amendment. This circuit split has important implications for both oenophiles and federalists, and may occasion a Supreme Court decision that clearly shows the effect on national policy of that Court's changing composition.