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Wednesday, December 8, 2004

Post-game Commentary on Swedenburg Oral Argument

Today's Wall Street Journal reports that members of the Supreme Court expressed skepticism about the constitutionality of state restrictions on out-of-state wine sales in oral arguments yesterday in the Swedenburg case:

"'In this case, you have a very high burden to show why this discrimination is justified,' Justice Anthony Kennedy said, criticizing state regulators and liquor wholesalers over their defense of state liquor laws.

"Michigan Solicitor General Thomas Casey, defending the regulations, said his state can't police out-of-state wineries for compliance with state liquor laws, including underage-drinking restrictions and excise-tax payments. 'The state only has effective enforcement over in-state licensees,' Mr. Casey said.

"But several other justices, including Sandra Day O'Connor, David Souter and Antonin Scalia, noted that states can enforce their liquor laws through licensing requirements for outsiders. And the justices also pointed out that there is little evidence that a winemaker's physical presence in a state is needed for enforcement.

"Clint Bolick, Washington attorney for a Virginia winemaker, said states have 'a panoply of tools available to states to police out-of-state wineries.' "

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