January 31, 2019

While we await a decision in Timbs, IJ is pushing along a second case before the U.S. Supreme Court this term. And in this one we have an opportunity to advance one of IJ’s long-term litigation goals: breathing new life into the Privileges or Immunities Clause of the 14th Amendment.

This Clause, which was virtually read out of the Constitution by the Court in the infamous Slaughter-House Cases, was intended to protect some of our most basic rights as Americans—including the right to earn an honest living and the right to travel freely between the states. Those two essential rights are at the heart of our case before the Court, Tennessee Wine and Spirits Retailers Association v. Blair.

IJ represents Doug and Mary Ketchum, who moved from Utah to Tennessee for its cleaner air after their severely disabled daughter, Stacie, suffered a collapsed lung and almost died during a temperature inversion that trapped dirty air in the Salt Lake Valley. The Ketchums quit their jobs, packed up, and used their retirement savings to buy Kimbrough Fine Wine and Spirits, a historic liquor shop in Memphis just down the road from the legendary Sun Studio. (None other than Johnny Cash was known to stop into Kimbrough’s for a bottle back in his day.)

Doug and Mary looked forward to this new chapter in their life, but their dreams of a fresh start were dashed by a crazily anti-competitive Tennessee law that bars them from receiving and renewing a retail liquor license until they’ve resided in the state for 10 years.

The Ketchums knew about Tennessee’s residency requirements before moving to the state, but they were not concerned. The Tennessee attorney general had twice determined the requirements to be in blatant violation of the Constitution’s prohibition on treating in-state economic interests more favorably than out-of-state ones. As a result, the Tennessee Alcoholic Beverage Commission (ABC), the entity responsible for granting retail licenses, was not enforcing the requirements.

This all changed when the Tennessee Wine and Spirits Retailers Association—i.e., the local liquor cartel—learned that the Ketchums and a more formidable competitor, Total Wine, were about to get their retail licenses.

To prevent that from happening, the Retailers Association threatened to sue the ABC. Ultimately, the state simply handed enforcement of the law over to the cartel. Indeed, neither the Tennessee attorney general nor the ABC are appearing before the Supreme Court or even filing a brief in the case.

The Ketchums and Total Wine won in the lower courts, but the Retailers Association appealed to the Supreme Court, where we now represent the Ketchums.   

In our briefs to the Court, Total Wine’s attorneys focused on how the residency requirements violate the Commerce Clause, while IJ made the case that they also violate the Privileges or Immunities Clause. A victory in this case will provide more ammunition to take on those who, like the Retailers Association, use government power to keep out competition, and to protect the economic liberty rights of all Americans.

As in Timbs, we will know the Court’s decision by the end of June. Both cases testify to the power of IJ’s long-term strategy to drive our issues up to the highest levels of our legal system, with the potential to secure the vital liberties of all Americans for generations to come.

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