He went on to say that residency, itself is likely unconstitutional in commerce law.
In a separate but similar application of commerce law, the Oklahoma Attorney General, Mike Hunter; told the State Liquor Agency, ABLE Commission; that the statutes requiring Liquor businesses to be owned by people with a 5 year residency requirement; is likely afoul of federal interstate commerce dictates.
Could Oklahoma Marijuana laws be struck down, as well? ABLE had sought the AG's opinion in light of a recent federal ruling on a Tennessee law to restrict out-of-state wineries. He concluded; "Your question is what effect, if any, the Tennessee Wine decision has on the validity of the residency requirements found in Section 4 of Article 28A of our State Constitution. We believe the U.S. Supreme Court would now hold those requirements to be unconstitutional." Another potential matter is the ban on out-of-state products being banned, while in-state versions are legal. This would possibly open Oklahoma to cannabis products from Colorado. It certainly opens Oklahoma to trace hemp products. Protectionism is the term that Hunter finally alleges. He says the courts would ultimately accuse the legislature of being motivated in a way that the US Constitution does not allow. At the ratification of the 1789 US Constitution, the states entered into an open trade agreement. Our constitution cannot tolerate this. It's one thing to ban a product from another state if you're also banning the local versions of the product or service. But a ban on Texas beef, for instance; would clearly be a violation designed to bolster Oklahoma Beef. |
Oklahoma Attorney General, Michael Hunter
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"In 2005. for example. the U.S. Supreme Court held that state
statutes that 'allow in-state wineries to sell wine directly to consumers in that State but prohibit out-of-state wineries from doing so' violate the dormant Commerce Clause. The Court found it 'evident that the object and design' of the statutes was 'to grant in-state wineries a competitive advantage over wineries located beyond the States’ borders,' and held that such 'discrimination is neither authorized nor permitted by the Twenty-first Amendment.' "
In the next section of Hunter's letter, he clearly warns ABLE that the legislature violated federal law, with clear unconstitutional intent.
"On June 26, 2019, the U.S. Supreme Court struck down Tennessee’s two-year 'durational residency' requirement as unconstitutional. Tennessee Wine, 139 S.Ct. 2449. As in Granhoim, the Tennessee statute was not saved by the Twenty-first Amendment. which 'cannot be given an interpretation that overrides all previously adopted constitutional provisions.' Indeed, the Court noted, it had already held in the past that alcohol regulations must comply with the free Speech. Establishment. Equal Protection. and Due Process Clauses. among others. so the Commerce Clause would be no different. The aim of the Twenty-first Amendment, the Court insisted, 'was not to give States a free hand to restrict the importation of alcohol for purely protectionist purposes.' Id. And the 'predominant effect' of Tennessee’s durational residency requirement, the Court held, was protectionism"
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"First, the Court emphasized that, pursuant to the dormant Commerce Clause. “if a state law discriminates against. . . nonresident economic actors, the law can be sustained only on a showing that it is narrowly tailored to advance a legitimate local purpose.”
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"The Supreme Court has not simply rejected the durational residency requirement, but residency as a prerequisite altogether. In other words, by employing such expansive language the Supreme Court signaled its unwillingness to uphold any residency requirement in this particular context."
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"The Court’s logic extends to non-durational residency requirements and those outside the retail context. The Court, for instance, held that 'because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional.' "
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" To summarize, in Tennessee Wine the U.S. Supreme Court stated it will apply intense scrutiny to state residency requirements in the context of alcohol regulation, it used expansive language and logic that strongly suggests its reasoning will apply to durational and non-durational residency requirements and to retailer and wholesaler licenses, it dismissed virtually all arguments that could be made in favor of residency requirements. and it made clear that its decision should not be interpreted narrowly."
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