Daily Times

When you move to another state, how long is it before you actually live there? That, in short, is the question the Supreme Court will decide this year in a case from my home state of Tennessee, due to be argued Jan. 16.

Doug and Mary Ketchum moved from Utah to Tennessee because their special-needs daughter’s fragile health required it. Once in Memphis, they wanted to run a business that would give them a steady income with flexible enough hours to let them care for their daughter, Stacy.

They bought Kimbrough Towers Fine Wine, but there was a catch. Although a new arrival to Tennessee (or any other state) can register to vote, acquire a driver’s license, own property, etc. more or less immediately, Tennessee law limits liquor licenses to people who have lived in the state for two or more years.

Tennessee says that law is unconstitutional. The state’s Alcoholic Beverage Commission recommended that the Ketchums receive their license, but the liquor-store trade association, the Tennessee Wine & Spirits Retailers Association, threatened to sue if the license was granted. Instead, the commission filed its own suit, asking that the law be declared unconstitutional. The Ketchums, represented by libertarian public-interest law firm the Institute for Justice, also sued.

When you move to another state, how long is it before you actually live there? That, in short, is the question the Supreme Court will decide this year in a case from my home state of Tennessee, due to be argued Jan. 16

Two courts agreed, but now it’s before the Supreme Court because it’s complicated. The 14th Amendment’s “privileges or immunities” clause – not to be confused with the different “privileges and immunities” clause in Article IV of the Constitution – limits how states can discriminate against new residents. In addition, the interstate Commerce Clause, through the “dormant Commerce Clause,” forbids discrimination against out-of-staters.

The Ketchums argue that because the court has recognized a fundamental right to travel freely (including a change of residency) from one state to another, the limitation on liquor licenses for new residents is unconstitutional. But the 21st Amendment, which ended Prohibition, gave states some additional rights. Not only did it end prohibition by repealing the 18th Amendment, it also provides: “The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

Does this mean the Ketchums have fewer rights?

There are two questions: First, does this mean that the Ketchums have fewer rights than otherwise because they’re selling booze? Second, if Tennessee says the law is unconstitutional, why doesn’t it just repeal it?

The answer to the first question is “probably not.” The Supreme Court has held that the general rule against discriminating against out-of-staters is not overridden by the 21st Amendment, though some scholars have criticized that. Even so, we’re supposed to have a seamless national market – making interstate commerce easier was the original reason for the Constitution. And though at the end of Prohibition, states were allowed to stay “dry” if they wanted to, or to restrict liquor sales to state-monopoly stores, the purpose of that local-option provision wasn’t to allow them to discriminate against people from elsewhere. (Though that “probably not” reflects the case law as it is – the Supreme Court may have decided to hear the case so as to change existing rules, under the Commerce Clause or the privileges or immunities clause.)

But why not just repeal the law?  Fundamentally, because repealing laws is hard. As fans of “Schoolhouse Rock” know, the path from bill to law – even a law repealing an existing law – is difficult and uncertain. Legislatures aren’t actually designed to pass bills so much as to make it easy to kill them, often without leaving any fingerprints.

Why are unconstitutional laws still on the books?

But this leads, as now-Judge Guido Calabresi pointed out many years ago, to the accumulation of statutes that grow obsolete but which remain on the books because there’s not sufficient political energy to get rid of them. Various tools have been suggested, and sometimes implemented, to do something about this, from “sunset” provisions to judicial doctrines such as desuetude. Generally speaking, however, once they’re on the books, we’re stuck with them.

When an obsolete law is on the books, even a fairly small constituency can usually block its repeal, even if the law would never command a majority in the legislature today. In the absence of better tools, sometimes all you can do is hope a court will strike it down.

If it were up to me, I’d require that every law be re-enacted every 20 years or so by a majority, or be dropped off the books. In the meantime, the Ketchums’ fate may tell us something about how the Supreme Court feels.

Published in Daily Times, January 5^th 2019