Byrd Law

By: Mike Pelzel

Much like beloved ne'er-do-well, Charlie Day, we too are well-versed in B[y]rd Law…

Tennessee Wine & Spirits Retailers Association v. Blair [Formerly known as TWSRA v Byrd]

Here you’ll find a play-by-play of one old case (Granholm v Heald), one new case (TWSRA v Byrd) and one VERY important amendment (Lucky No.21)…

Let’s start with a quick refresher of the 21st amendment…

Congress proposed the amendment on February 20, 1933 and has 3 Sections…

S1.) Repeals 18th Amendment aka Prohibition

This was the first time an amendment as repealed another amendment

S2.) Confers authority over alcoholic beverages to the states 

This is very contentious – with many different interpretations of the law by judges in circuit and appellate courts.  This is likely why the justices decided to hear the case (Rule of Four)

S3.) Calls for the proposed amendment to the constitution to be ratified by State Ratifying Convention (separate from the Legislature

The temperance lobby was extremely powerful back then (plus politicians didn’t want to lose their jobs)

The lobby remains powerful to this day this Amendment remains the only one ever ratified in this manner.

Tennessee Wine & Spirits Retailers Association v. Blair [Formerly known as TWSRA v Byrd]

Timeline of Events

9/27/2018 Writ of Certiorari granted (Rule of Four)

1/16/2019 Oral Argument at the Supreme Court


On Fridays the Justices meet to discuss the arguments of the week. Most likely at the exact moment I presented this to our Salesforce

?/??/2019  Opinion of the Court released

TWSRA V BLAIR: Will it be another Janus?

The supreme court can decide to rule narrowly on the below issue (only on residency requirements – or the standing of the case) or they can draft an opinion with more far reaching consequences. 

Issue: Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entitles that have resided in-state for a specified time.


Granholm v Heald

The Granholm case is actually three consolidated cases: 

  1. Granholm v. Heald

  2. Michigan Beer & Wine Wholesalers Assn. v. Heald

  3. Swedenburg v. Kelly

Granholm and Michigan Beer challenged Michigan regulations, while Swedenburg challenged a New York rule on interstate shipment of wine. The consolidated cases presented the same question: "Does a State’s regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of §2 of the Twenty-first Amendment?" 


Illinois = 4% of Volume at an industry comprising 2.5 Billion

MEANING…$100,000,000 on which you could be making commission!!!!

Okay, circling back…

The Granholm v Heald opinion released in 2005…

5-4 split decision which was NOT along party lines (see graphic below; tenure in order left to right)

Stevens & Thomas v RBG & Scalia (In what world does this happen? )

Released on May 16th 2005…

Opinion of the court (By: Anthony Kennedy) here

Minority opinion (By: Clarence Thomas) here

Minority opinion (By: John Paul Stevens) here

John Paul Stevens had a great regard for Judicial Precedent and his concurrence in Thomas dissent shouldn’t be taken lightly - A 2003 statistical analysis of Supreme Court voting patterns found Stevens the most liberal member of the Court. 

Highlights from Justice Stevens dissent:

“Today’s decision may represent sound economic policy and may be consistent with the policy choices of the contemporaries of Adam Smith who drafted our original Constitution;4 it is not, however, consistent with the policy choices made by those who amended our Constitution in 1919 and 1933.

My understanding (and recollection) of the historical context reinforces my conviction that the text of §2 should be “broadly and colloquially interpreted.” Carter v. Virginia, 321 U.S. 131, 141 (1944) (Frankfurter, J., concurring). Indeed, the fact that the Twenty-first Amendment was the only Amendment in our history to have been ratified by the people in state conventions, rather than by state legislatures, provides further reason to give its terms their ordinary meaning.  Because the New York and Michigan laws regulate the “transportation or importation” of “intoxicating liquors” for “delivery or use therein,” they are exempt from dormant Commerce Clause scrutiny.    

As Justice Thomas has demonstrated, the text of the Twenty-first Amendment is a far more reliable guide to its meaning than the unwritten rules that the majority enforces today. I therefore join his persuasive and comprehensive dissenting opinion.”

–  Justice Stevens

What’s at stake in TWSRA v Blair?

Granholm held that wineries can ship to consumers in the 50 states (dormant commerce clause) yet retailers can’t ship to anyone outside of the state? 

Privileges and Immunities Clause – Does this save the Granholm reading which incorporates the dormant commerce clause?

Dormant Commerce Clause – See another split decision not on party lines Comptroller of the Treasury v Wynn

In Tennessee Wine there are distinct issues where there is a circuit split. This case deals with the complex question of whether Granholm’s reach is limited to producers or extends to retailers and wholesalers and whether the duration of residency requirements are constitutional.

Illinois’ Involvement

See Lebamoff v IL – Indiana retailer trying to ship into IL – Rauner made it a felony

Plain English Tribune Background

7th circuit awaiting TWSRA opinion

Illinois Lobbying body (we pay them)

Amicus Curiae brief submitted by Illinois (Lisa Madigan – IL Attorney General) supporting the Defendants - on behalf of not 1, not 2 but 37 states – here

Oral argument by Illinois Solicitor General David Franklin on behalf of the petitioner. Representing 34 states.

Oral Argument!

Here - transcript

This is a hard case to handicap: Justice Ruth Bader Ginsburg was absent, Chief Justice John Roberts said very little, and Justice Clarence Thomas did not say anything at all.

Kagan and Justice Neil Gorsuch fretted aloud about the prospect that a ruling for Total Wine and the Ketchums would open the doors to new challenges – …….  Isn’t the next business model, Gorsuch continued, just to operate as the Amazon of liquor?

The Roberts Court Bird Law Interpretation

January 16th, 2019 

John Roberts is considered an Institutionalist and he has been at odds with the conservative wing as of late (Thomas, Alito, Gorsuch) he is someone that considers his legacy as the Chief Justice.  This might be a chance to guide his court towards altering the topography of the legal system.

Chances are that Clarence Thomas has been chomping at the bit to reverse Granholm v. Heald and as the senior most conservative (who authored a minority opinion when he was a junior most conservative justice) he may be leading the charge.

4 Justices (Rule of Four) must have granted writ of cert – Clarence Thomas authored the dissenting opinion 14 years ago – while cert was issued when there were 8 justices (after Kennedy had retired) sitting.  With another conservative joining after the fact the odds are stacked for a State’s Rights decision.

Stay tuned for more THRILLING updates…

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