The Supreme Court erred by denying certiorari in Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. The Texas statute that bans all publicly traded corporations from obtaining a license to sell liquor, but carves an exception for some Texas-run public corporations through an express clause, is in direct violation of the dormant Commerce Clause. The Texas Legislature disguised the public corporation ban as a “facially neutral” alcohol regulation, however, the ban is discriminatory towards out-of-state competitors in both its purpose and effect. Moreover, the Fifth Circuit’s decision in Wal-Mart Stores is firmly inconsistent with Supreme Court precedent. Additionally, the Fifth Circuit has misapplied and misinterpreted case precedent to generate an arbitrary per se rule for similarly situated businesses. The interpretation used by the Fifth Circuit has created a circuit split for both state alcohol regulations and the Commerce Clause more generally. The Supreme Court’s ignorance of the errors committed by the Fifth Circuit in Wal-Mart Stores has opened the door to constitutional, legislative, and economic harms.
Part I of this Note will discuss the interconnection between the Commerce Clause and the Twenty-First Amendment. Part II will discuss the case history of Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. Part III will argue that the Supreme Court erred by denying certiorari in Wal-Mart Stores preview the potential harms stemming from this decision.
This abstract has been taken from the author's introduction.