Back in November we wrote about the Texas Alcoholic Beverage Comission’s appeal challenging an important Texas Federal District Court win for Wal-Mart in another Commerce Clause case invalidating a state restriction that impacted out-of-state retailers differently than in-state retailers.
In that piece we covered the District Court decision in detail and pointed out that the win was another great example of how going to trial and putting on expert testimony and evidence showing that a liquor law does not actually produce the effect (temperance, orderly marketplace, reducing under age driking, etc.) that a state claims it does is a sure-fire way to overturn archaic and unfounded liquor laws adopted by legislatures for an improper purpose or based on assumptions (typically non-scientific reasoning) about how people act or what the effect of a law will be.
A good example of this would be the 8th Circuit case presently underway in Missouri where testimony from experts demonstrated that certain advertising bans on pricing bore no relation to reducing consumption.
The Wal-Mart challenge is more intriguing because it was the impact of the challenged legislation that the District Court found violated the Commerce Clause and not the language. The statute can be facially neutral, but have an impact that drastically hinders operations of out-of-state interests and not those of in-state interests thereby violating the Commerce Clause.
For those familiar with the briefs in the Supreme Court and 6th Circuit Byrd/Tennessee matters, many of the arguments will seem familiar. There are a few standouts, one decent argument made by the Amici in the Pacific Legal Foundation’s brief discusses how event under Rational Basis Review, economic protectionism is not a legitimate government interest.
In the prior article (link above) we provided the briefs filed up to that date. Since that piece was published the briefing has finished. The response and reply briefs for the appeal and cross-appeal as well as two amicus briefs in support of Wal-Mart’s position.
Here are the final briefs: