On Constitution Day, the 7th Circuit held its oral argument on the appeal of the win by Illinois defending its retail shipping law from dormant Commerce Clause challenge. Circuit Judge Frank H. Easterbrook, Circuit Judge Ilana Diamond Rovner, and Circuit Judge Rebecca Taibleson heard this case. Both Judge Easterbrook and Rovner have served on recent 7th Circuit panels dealing with state alcohol laws.
It is always hard to predict what will happen after an oral argument and this argument is no exception. Judge Easterbrook served as traffic/ microphone policeman for much of his time. Judges Rovner and Taibleson asked good questions of both sides. Judge Taibleson’s challenge to the appellants that they seem to be seeking a “strict scruutiny” standard against the states was music to my ears as that appears to be the corner that the appellants are trying to herd the states into despite the 21st Amendment. The shifting of burden to the states and the impossible hill they’d have to climb to defend state alcohol laws under that test will put wide ranges of state alcohol laws at risk.
It is unknown when the ruling will be issued. A link to access the oral arguments is here.
(previous post) Oral Arguments Set in 7th Circuit for Out-of-State Retail Challenge to Illinois Law
Oral arguments have been set for September 17th in Chicago for the straggler out-of-state retailer dormant clause challenge. Recall, the Illinois district court rejected the out of state retailer challenge to Illinois retail laws following a previous ruling in the 7th Circuit out of Indiana, as well as state wins in the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, and 9th Circuits. As always, the plaintiffs have appealed.
The opening brief of the appellant can be found below as can the State’s response, the Appellant’s response brief, as well as an amicus brief filed by the Center for Alcohol Policy.
(previous post) Federal Judge Rules for Illinois Against Out-of-State Retailer Challenge
Judge Jeremy Daniel sitting in the Northern District of Illinois has ruled for the state of Illinois against a challenge by a Washington state retailer and two Illinois consumers to laws related to the sale of wine.
Judge Daniel ruled that the plaintiffs did have standing but that the state’s evidence was sufficient to defeat the dormant Commerce Clause claims of the plaintiffs. The recently decided Seventh Circuit decision supporting Indiana served as a helpful recent guidepost for Judge Daniel’s decision.
The forces behind these lawsuits seem to be laser focused on trying to find any way to get back to the United States Supreme Court. Despite the Seventh Circuit resolving the Indiana case last month, the plaintiffs in this case could still try to appeal the Illinois decision back to the Seventh Circuit.
The decision by Judge Daniel can be found here:
No surprise but disappointing, nevertheless.