The State of Ohio filed notice that it intends to appeal an order on retailer direct shipping to the U.S. Supreme Court. In a motion to the 6th Circuit Court of Appeals, the state said it is likely four of the nine justices will vote to review the question of whether a state may ban direct shipments from out-of-state retailers, even though it permits such shipments by in-state retailers.
"This question is extremely important," Ohio argues. "It pits the 21st Amendment, which appears in the Constitution, against the 'dormant commerce clause,' which does not." As part of the repeal of Prohibition, the States wee given explicit constitional authority to control the transportation, importation and sale of alcohol within their boundaries." Section 2 of the 21st Amendment prohibits shipments into a state, or possession in violation of that state's laws.
By comparison, the Commerce Clause says only that Congress has the power to regulate commerce among the several states.
Ohio's motion says the Supreme Court should be interested in taking the case for two reasons. First, in Granholm v. Heald held a three-tier system that interposes a middleman between manufacturers and retailers is "unquestionably legitimate," the district court in this case held that the validity of Ohio's drop-ship restriction turns on whether the measure "can be justified as a public health or safety measure or other nonprotectionist ground." The result is a split among the circuits.
At least two other appallate courts have rejected challenges to drop shipments. The result is a split among the circuits.
The second reason the court is likely to take the case is that the Supreme Court has already shown it is interested in the case. The court has previously noted that drop-shipment restrictions inherently "protect public health" and three-tier distribution systems have "baked in public health justifications" like temperance."