Why is Virginia Passing A Blatantly Unconstitutional Spirits Shipping Law?
If was 15 years ago when the Supreme Court of the United States issued its ruling in Granholm v Heald. In that important ruling the Court wrote:
“If a State chooses to allow direct shipment of wine, it must do so on evenhanded terms. Without demonstrating the need for discrimination, New York and Michigan have enacted regulations that disadvantage out-of-state wine producers. Under our Commerce Clause jurisprudence, these regulations cannot stand.”
In the Commonwealth of Virginia House Bill 1187 would allow Virginia distilleries to take orders over the Internet from Virginia citizens, then ship those spirits via common carrier to residents of the state. It is a good idea.
However, the bill does not allow out-of-state distillers to ship spirits to Virginians. In other words, this bill sets up exactly the same kind of discrimination that the Supreme Court ruled in Granholm v Heald to be unconstitutional. When I spoke to the Legislative Aid of the bill’s sponsor, Delegate William Wampler (R), I was told that the implications of this discrimination and the implications of Granholm v. Heald were not given any consideration by the sponsor.
I can also confirm that in three hearings on this bill in the Virginia House and Senate not once was there any mention or discussion of the bill’s blatant unconstitutionality.
If challenged in Federal Court after it becomes law, this Virginia Spirits Shipping bill will be ruled unconstitutional. There is nothing in Granholm that speaks to or indicates that the non-discrimination principles outlined in that Court decision apply only to wine while allowing discrimination in Spirits sales to stand.
The American Craft Spirits Association ought to immediately challenge this law when it is approved by the Virginia House and eventually signed by the Virginia Governor. For that matter, Virginian consumers ought to challenge this law. In the end, it is the out-of-state distillers who are discriminated against by this law and the Virginia consumers who are harmed by this anti-consumer law.
What is perhaps most interesting is that the sponsor of this bill, the drafters of the bill’s language, and the members of the Virginia House and Senate committees (3 of them) who sat through hearings on this bill apparently had no interest in discussing the constitutional implications of the bill in light of Granholm v Hearld nor its blatantly discriminatory nature.
Whether this deficiency in the way the bill was crafted or considered is a matter of ignorance or disregard is an important question. If it is the former, then clearly someone needs to do some education. If it is the latter then someone really needs to set the state of Virginia straight and hold them to account.
Unless fixed by allowing Virginians to receive shipments of spirits form out-of-state distillers, this bill will be challenged in Federal Court. This bill will be ruled unconstitutional. And whatever lawyer determines to challenge this law will have their considerable expenses paid for by the state of Virginia. This would be a waste of Virginians’ money and time that isn’t necessary.