HOW I STOPPED WORRYING AND LEARNED TO LOVE THE DORMANT COMMERCE CLAUSE

Robert J. Sewell

Photo Credit: https://verdict.justia.com/2015/05/20/is-the-dormant-commerce-clause-a-judicial-fraud

During its recent term, the Supreme Court decided Tennessee Wine & Spirit Retailers Ass’n v. Thomas, a case pitting the Commerce Clause, or rather the Dormant Commerce Clause Doctrine (“DCCD”), against Section 2 of the Twenty-first Amendment.  In a 7-2 decision, the Court held that the DCCD’s prohibition of state-level protectionist legislation trumped the Twenty-first Amendment’s grant of seemingly plenary authority over alcohol sales.  The Court’s opinion indicates, much to the chagrin of law students and bar examinees, that the DCCD remains an enduring part of the United States Constitution’s structure.

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