United States v. State of North Dakota, Robert E. Hanson, State Treasurer of North Dakota

H07 America, STATES UNITED

Appellant, DAKOTA, Robert OF NORTH

STATE Hanson, Treasurer

E.

Dakota, Appellees.

No. Appeals, Court of

Eighth Circuit. 10, May

Submitted 9, 1988. Sept.

Decided D.C., the for clause of States Constitution. Washington, United Hepper, Raymond twenty- responds Dakota that appellant. North the amendment, impor- which forbids the first Bismarck, N.D., for Spaeth, Nicholas J. in of alcohol into a state violation tation appellees. state, gives power to of that it the the laws HENLEY, LAY, Judge, Before Chief liquor mili- regulate importation the R. Judge, and JOHN Circuit Senior unlawful tary in order to control its bases GIBSON, Judge. Circuit the state’s domestic com- diversion into merce. HENLEY, Judge. Senior Circuit the district presented The case was pass upon must appeal In this we summary judg- on cross for court motions Dakota's at-

constitutionality of North mili- parties stipulated ment. The military’s purchase regulate the tempts to suppli- liquor are not exclu- tary from out-of-state North Dakota of alcoholic bases require out-of- The jurisdiction ers. State’s enclaves.2 sive each suppliers affix a label to beverages alcoholic on The outlets for military in- liquor destined for bottle Dakota military installations North stating Dakota North stallation in denom- package goods and stores are clubs consumption within exclusively for liquor is non-appropriated fund instrumentali- inated addition, military the federal enclave. (NFIs) government. ties of the federal monthly report supplier must file a each supported directly with NFIs are liquor shipped into showing quantity of pur- They government funds. exist for during preceding month.1 the State support mili- generating profits to pose of parties a case in which the this is While They accom- tary activities. recreational liquor simply to over may appear bicker through of alco- plish largely the sale this stickers, important constitu- implicates mili- beverages to active and retired holic tional considerations. regu- A personnel their families. tary and brought suit The pro- Department of Defense lation of the Dakota for a against the of North cooperate Department shall vides that regulations are that the State’s declaration pur- “the but that with local authorities injunction and for an unconstitutional beverages for resale all chase of alcoholic position of against enforcement. The their in such a military ... shall be facilities] [at essentially that the United States shall such conditions as manner and under regula- regulations conflict with a federal advan- most obtain for procure requiring the tion contract, con- price and tageous other contract, and advantageous most 261.4 factors.” 32 C.F.R. supremacy sidered § under the are therefore invalid 84-02-01-05(1) prescribed approved the state manner Admin.Code 1. North Dakota treasurer. provides: bringing liquor sending into persons All regarding the parties no evidence 2. The offered Dakota sched- shall file a North North Dakota State. jurisdiction vested extent of shipments for report and returns of all ule A address the that it need not court The reasoned state treasurer. calendar month each is not jurisdiction inasmuch as the State issue attempting postmarked or before report be on must consumption alcohol following day month. the fifteenth States v. enclave. United the federal 84-02-01-05(7) within Admin.Code North Dakota (D.N.D. Dakota, F.Supp. North provides: However, regu 1987). attempt the State delivery to a federal liquor destined for All between distillers late the transaction domestic con- North Dakota enclave in sumption for delivery, storage military: sale—of “the through transported li- and not exclusively [bas within occur[ ] delivery Dakota wholesaler censed North Tax Comm’n States v. State es].” fide federal enclave to such bona 363, 377, 93 S.Ct. Mississippi, 2192, clearly each have identified Dakota shall (discussing Collins 37 L.Ed.2d for con- that such be item shall individual sumption Co., Curry Park Yosemite & exclusive- the federal enclave (1938)). a form and ly. must be in Such identification Id. price. possible the lowest quor at nei- provides further granted the court Accordingly, nor local authorities cooperation ther summary judgment, motion bearing on the most the State’s factors” “other motion summary judgment construed denied shall contract advantageous control, The United States to state States. of the United submission requiring as follow, we that alcoholic reasons that requirements For the taxation, appeals. sup- in-state from purchased beverages be reverse. Id. pliers. twenty-first amend 2 of Section that, in re- record shows court trial The or im transportation “The provides: ment out- one regulations, the State’s to sponse delivery or ... into State portation Force Air informed supplier of-state in viola intoxicating liquors, therein of use rang- increases impose price it would that prohibit thereof, hereby laws of the tion Five per case. to $20.50 ing from $.85 on the conferred power” “core The ed.” military to to sell refused suppliers other ‘control exercising of 2 “that in states According to an Dakota. North facilities or sale importation permit to over whether Hanson, State from Robert affidavit liquor structure how to liquor and of although we suppliers, Treasurer, other ” Capital Cities Ca system.’ distribution comply willing many, are told how 715, Crisp, U.S. ble, Inc. v. 467 regulations. 2704, 580 2694, L.Ed.2d 81 104 S.Ct. an affidavit submitted States United The Dealers Liquor Retail (quoting California joint manager of the Keltz, the Kim from Inc., 445 U.S. Aluminum, v. Midcal Ass’n purchasing consolidated military service 945-46, 937, L.Ed.2d 63 97, 110, 100 S.Ct. if stating spirits, distilled program effect principal (1980)). While 233 its dis- purchase military is forced normal from the states free 2 is to whole- local from requirements spirits tilled the commerce imposed constraints approximately rise would salers, costs limits, not without clause, freedom this Mr. annually.3 $250,000.00 $200,000.00 to 207, 190, 97 S.Ct. Boren, Craig v. labels stated affidavit Hanson’s (1976); South 397 462, L.Ed.2d 451, 50 diversion, and control necessary to were (8th 628, 633 Dole, 791 F.2d v. Dakota of the “aware he was — —, 107 S.Ct. U.S. Cir.1986), aff’d, Dakota beverages alcoholic twen (1987), since 171 2793, L.Ed.2d 97 domestic the state’s into federal enclaves states give the ty-first amendment state’s in contravention commerce liquor. regulate power exclusive system.” distribution liquor established Determining the at 633. Dole, F.2d 791 that, al- reasoned judge district The power and of state precise contours indirectly may have though the task, simple necessarily is not area this liquor military’s increase an caused — Dole, v. U.S. Dakota South however. regula- conflict costs, they did not 2795, L.Ed.2d 2793, —, 107 S.Ct. advantageous con- most requiring the tions “have the amendment (1987) (bounds most merely Rather, made they tract. Alu Midcal definition”); precise escaped expensive. more advantageous contract at 946 110, 100 S.Ct. minum, Dakota, v. North United States line between (“no bright court The (D.N.D.1987). 555, 557 F.Supp. case, we liquor”). over powers assuming a conflict that, hold on to went extends power State whether decide must interests, the State between regu here State to enable far as so interests as its prevail, would the State States instrumentalities late importation regulating concurrent exercises over outweigh jurisdiction.4 li- procuring of the those its boundaries. absolutely prohibit them note 9. See 3. infra 60 S.Ct. Reeves, 308 U.S. Ziffrin, Inc. in cases But L.Ed. regulate alcoholic power to broad The state’s territory, one sovereignty the same over dual greater largely beverages rests immunity from state taxation enjoys a state ability of supremacy clause.6 subject virtue was by the purchases Court decisions, 95 S.Ct. at 1880-81. The Supreme Court related of two agreed, citing Department Revenue Tax Commission v. State United States Co., 377 U.S. Distilling Beam B. 93 S.Ct. James Mississippi, (1964), 12 L.Ed.2d 362 I”) (1973)(“Tax L.Ed.2d Voyage Bon Li- v. Idlewild Hostetter Tax Commission v. State 1293, 12 Corp., 377 quor Mississippi, Beam, (1964). In II”). James (1975)(“Tax Commission L.Ed.2d 404 Kentucky’s tax on had prom- Court invalidated had Mississippi Tax Commission the whiskey from Scotland on import the of distillers to ulgated regulation requiring a Export- the tax violated the ground that markup,” the which collect a “wholesale 2, Clause, 10, I cl. and held Import Art. tax, military § from was determined Court not had that, the twen- The Court held purchasers. the repealed that clause. Hostetter I, notwithstanding, Art. ty-first amendment twenty-first amend- held that the Court prohibited 8, 17, cl. of the Constitution5 § clause not the commerce ment did override any regulating manner the state prohibit York extent that could to the New over occurring on those bases transactions liquor, United States Cus- the sale of juris- military exclusive the exercised passengers supervision, airline de- toms 375, 369-71, at 93 at S.Ct. diction. 412 U.S. The Court parting for other countries. analysis on The Court rested 2190-91. ‘patently “[sjimilarly, it is a that concluded twenty-first amend- language of the the ‘extraordinary conclusion’ to and bizarre’ “importation forbidding the unlawful ment Twenty-First suggest that the Amendment state,” observing that an exclu- any into tax- immunity respects as abolished is not within sively enclave the United on sales to where es bases 375, at 93 S.Ct. territory. Id. at state’s Mississippi exercise concurrent States 2190-91. 614, at 95 S.Ct. 421 U.S. jurisdiction_” stipu- case noted, parties to this the As 332, Hostetter, at (quoting at 1881 are not in North Dakota that bases late Beam, 1298, 377 U.S. at 84 at James S.Ct. jurisdiction, and under exclusive 1249-50). 345, at 84 S.Ct. argument no makes States the Tax argues that The United States 8, I, Tax Art. cl. 17. In application of § holding than II does more Commission however, I, was the Court NFIs; of prohibit state taxation merely validity determining the faced also with found all rather, argues the Court it the context of concur- regulation in state liquor imports into con- regulation of mili- over jurisdiction rent state and federal prohibited. jurisdiction installations current the sub- That issue was tary installations. following pas- quotes The United States subsequent appeal ject of a remand sage: In Tax Court. Commis- Supreme to the held that last here we the case was the When II, attacked the United States sion confers Amendment Twenty-First it “the ground violated state tax on regulate on a power no State v. set forth McCulloch principle, first —wheth- taxation, or otherwise— by licensing, Wheat.) 316, er (4 4 L.Ed. Maryland, 17 U.S. spirits into importation distilled (1819), that the national 8, 17, I, Congress empowers to "exer- cl. normally prohibit § 5. sovereign may Art. what 315, Places Oregon, Legislation over all ... permits. v. U.S. exclusive Nielsen cise other 321, 383, Legislature purchased the Consent Thus, be, supremacy con- putting clause aside for the even Same shall in which siderations, infra, ques- up Arsenals, it is Forts, we take Magazines, dock- Erection prohibit im- a state could tionable whether portation yards, Buildings." and other needful into bases when alcohol it, States, permits "co-sovereign,” United Const, VI, art cl. 6. U.S. correspondingly the lesser some doubt. drawn into

lili A Article VI. principle. this essential over which territory is that principle corollary to [pursuant jurisdiction exclusive exercises Federal Government Constitu- activities I, cl. Art. by any state. at S.Ct. U.S., at [93 free from tion].” competing enact- Yosemite Park v. adjustment Collins No other see 2190-91]; possible. Co., legal principles [58 Curry ments & (1938). Cf. L.Ed. 1502] States, Mayo v. United Co., Contracting Dravo James 1137, 1139-40, 87 L.Ed. 208, 212, 82 L.Ed. 140 [58 added). ap It omitted) (emphasis (footnote conclu- same reach (1937). We 155] is the “corollary principle” that this pears bas- jurisdiction concurrent to the as sion deci the Court’s underlying rationale does I, cl. Art. to which es II, in Tax Commission sion apply.... question to the force as much applies with This taxation. as it does to Fol- there, however. not end sentence re by the Court’s bolstered conclusion continues: colon, Court lowing a Maryland, liance McCulloch Twenty- language “Nothing Mayo, both Wheat) (4 L.Ed. to history leads in its nor Amendment First 1139 n. at n. at 445 319 U.S. the conclusion extraordinary the II, at 612- 421 U.S. Tax and immunity federal abolished Amendment uni for The need at 1880-81. S.Ct. 95 liquor to on sales to taxes respect with clause supremacy the underlying formity United the where on bases the greater, if not great, is Mayo as cited concurrent Mississippi exercise States it as regulate power to to the respect at S.Ct. 95 Id. at jurisdiction.” instrumen- to tax concerning power the is quotations added, internal (emphasis 1881 government. of the talities expres- omitted). latter This and brackets out that feder correctly points State The con- modify “same to taken might be sion to may give way generally al interests taxa- to that, respect mean clusion” the state when interests weightier other the same. On the tion, is result twenty- power core its exercises apply read may be hand, opinion at Crisp, first amendment. terminology to a state’s conclusion” “same so may be when That licensing, at S.Ct. 104 “to power —whether a con asserts example, 613, 95 party, Id. private at otherwise.” taxation, or in right or federally-created en- added). While stitutional (emphasis at 1880 S.Ct. twenty- itsof use state’s is interest- against exercise terest semantic gaging Tax Com explore power, but as first amendment it wise well ing, we think state’s su- teaches underlying the II decision mission policies extent some authority reaches is where “virtually unlimited” clause, since that premacy exercise attempts to decision. the state when rested limits Supreme Court instrumentality of an over explained has Supreme Court principle This itself. government clause supremacy operation of sys of the nature inherent following terms: not does a state sovereignty tem: govern- is a States Since the Congress by which means to the extend of which powers, none delegated ment it. upon conferred powers executes throughout the Nation may be exercised see 428; Wheat) at (4 McCulloch, necessary state, one by any at 1139-40. 63 Mayo, the United laws uniformity that twenty- 2 of function The essential those over dominant be States from the states amendment, to free first also required dominancy is Such state. commerce operation of normal of administration a breakdown to avoid these abrogating justify clause, arising conflicts possible through States principles. longstanding su- requirements. inconsistent (twenty- Cir.) (5th 136, 139 Texas, F.2d states of the Constitution clause premacy the Federal and the upon fed does not touch [sic] first amendment clause), competition. lack of beyond the commerce eral concerns 933, 104 denied, cert. Id. (1983); Craig, 429 also see Moreover, history military al (relevance at 461-62 longstanding procurement reflects a cohol provi constitutional to other beverages at policy purchasing alcoholic beyond consid passing doubtful once sions price using the the lowest available clause). commerce eration of proceeds for the benefit of the welfare pursu- case, Congress has acted In this fam military personnel and their morale prerogative to ant to its constitutional Carolina, ilies. v. South United States armies,” “provide support “raise and (D.S.C.1983); Com F.Supp. regulate the Navy,” and “to maintain a ment, Pre-empting Action Taken Const, I, art. land and naval Forces.” Twenty-First Amend Pursuant to the “alcoholic provided that Congress has 8.§ ment, An Temp.L.Q. on a for resale beverage purchases made aspect federal scheme worth other in the United located military installation noting that recreational activities need the most com- made from shall be govern supported the federal con- source, other factors price and petitive through appropriated long funds so ment 2488(a)(1).7 In en- 10 U.S.C. sidered.” provide sufficient as the NFIs are able Congress con- acting legislation, City Brewing Co. v. revenue. Falls sidered, requirement that rejected, a but Reeves, F.Supp. (W.D.Ky. 39-40 liquor from military procure all its S10936, 1941); (daily Cong.Rec. the installa- state where sources within the (statement 9, 1986) Aug. of Sen. Gold ed. liquor is to be sold tion on which water). twenty-first conclude that the We Cong., Sen.Rep. No. 99th located.8 regulat provides no basis 283, 1986 U.S. Code reprinted in 2d Sess. Congress has ing the means 6413, The Sen- Cong. & Admin.News military liquor procure sought to order Report explains, ate for the welfare and provide and to ment object to The committee continues military personnel. activities of See morale requirement and has included such a (4 Wheat) McCulloch, at 428. mandating purchases of provision Moreover, that Tax incline to the view we beverages resale be such alcoholic precludes II state economic in the most efficient and made jur concurrent notwithstanding the State’s manner, regard to the location without v. over the bases. United States isdiction beverages, except as the source of 8; Texas, n. v. F.2d at 140 Rehner 695 may affect cost.... that location [T]he Cir.1982), 1340, (9th Rice, F.2d 1350 678 procurement committee believes 713, U.S. 103 grounds, 463 rev’d on other beverage for resale should alcoholic (1983). 3291, 77 L.Ed.2d 961 S.Ct. effects same favorable subjected to the assuming that the Even procure- useful in the competition as is jurisdiction over extends Addi- amendment goods and services. ment of other Texas, matter, States v. subject see United tionally, committee does believe balancing 138, we find that F.2d at upon Depart- impose appropriate lead us interests would and federal ment, activi- of state morale and welfare or the regulations are the State’s conclude that requirement Department a ties of the pri The four law. by federal pre-empted in additional costs will result weighing state mary considerations dollars, by caused of millions of tens “(1) perva- are: federal interests in and taxation imposition of indirect State draw no inferences. which we fact from purchases excluded from are 7. Beer and wine 9, 1986) Aug. 2488(a)(2). (daily ed. Cong.Rec. requirement. S10936-37 10 U.S.C. Andrews). (Statement Sen. co-spon- proposed and amendment was 8. The Dakota, a of North Senator Andrews sored scheme, program, perhaps the most decisive regulatory federal of the siveness occupation Congress of the field this case. “Even where has not (2) federal whether national uni- by a need for displaced regulation in a completely is necessitated state (3) danger of conflict between formity, area, specific state is nullified to the law of feder- and the administration state laws actually extent that it conflicts with reg- state whether the programs, al ‘compli when law. Such conflict arises constitu- infringes upon individual ulation regula federal and state ance with both (cit- Id. 138-39 guarantees_” tional Florida physical impossibility,’ tions is a Davidowitz, v. Hines ing Paul, Growers, Inc. v. Lime & Avocado (1941); Pennsylva- 85 L.Ed. S.Ct. 1217- 142-43 S.Ct. [83 Nelson, v. nia (1963), 10 L.Ed.2d when 248] (1956)). The first three an to the accom law ‘stands as obstacle here. relevant these considerations objec and execution of the full plishment factor, pervasiveness The first v. Hines Congress,’ purposes tives essentially a vehicle for program, Davidowitz, supra 312 U.S. at 67 [61 occupy intent to determining congressional v. Auto Hillsborough County at 404].” Nelson, Pennsylvania field. See Inc., Laboratories, mated Medical at 480-81. U.S. at 713, 105 2371, 2375, 85 L.Ed. control, alone do not Although regulations (1985). regulations fail 2d 714 State’s consider whether we must least the latter test. agency entrusted to by an promulgated Congress has mandated Because ex- purpose congressional carry out competitive liquor on a military procure occupy the completely press a desire profits for the to maximize basis order Dur- Reynolds Tobacco Co. field. R.J. activities, morale support of welfare and Carolina, County, ham regulations are in we find that State’s policy. The State does conflict with Here, Department of Defense of an military’s projection dispute the mili- prohibits specifically liquor bill of in its annual increase annual control over to local tary submitting increase re- $200,000.00-250,000.009. This 261.4. 32 C.F.R. liquor procurement. uniformity, the factor, effect directly need for from the the sults The second making out-of- the States. have in weighs regulations in favor of State’s also local competitive and characteristics with national scale less Given the distillers validly “Congress might nothing in military, Although of the wholesalers. uniformity regu- is desirable.” that such that the compels conclude tous believe record 73, An Hines, at 407. at 61 S.Ct. require in-state pretext to lations are embracing system” for “integrated and all large part is to in the effect purchases, to activities morale providing welfare and purchases make military require the to appears to have been personnel military would not purchases that within State — 2488. Id. enacting goal in congressional out-of-state competitive with otherwise S.Ct. at 407-08. at seen, con- this result As we have sources. open com- for Congress’ desire with flicts consideration, danger of third revenue designed to maximize petition law and the between state conflict military’s suppliers ei- have percentage of the by the lack troubled are somewhat 9. We to deal. prices or refused regarding much of their how ther increased However, in the record evidence its distilled buy argument this military have to no spirits will State makes The affidavit assertions acquiesce Dakota. sources in North point, seems to Treasurer, Hanson, Moreover, states that the State loss of six Mr. United States. of the regulations object to the did not some distillers im- significant financial suppliers have a will military. supply would continue to buy military at least a requiring pact in why explain will have States does spirits from portion of distilled its substantial in-state, thereby purchase all of Dakota, otherwise it would $200,000.00-250,000.00figure, these if incur bought elsewhere. have what we tell Nor can are still available. sources upon does not trench the federal interests morale activities.10 welfare we have identified. Such must Quite from the apart beyond reasonably not extend what is nec always amendment, has had the the state essary protect State’s interest police to take right pursuant to its preventing unlawful diversion. Duck prevent the unlaw reasonable measures worth, at 62 S.Ct. at 314. We U.S. into its stream ful diversion precisely need not here decide how the I, 412 atU.S. commerce. Tax Commission might legitimately further its State inter 2191-92; Virgi at Carter litigate every ests. than seriatim Rather nia, 64 S.Ct. measure to conceivable combat unlawful (1944); 88 L.Ed. 605 Duckworth diversion, it would be advisable for the 390, 393-97, Arkansas, parties, perhaps conjunction with the (1941). 311, 312-15, But the governments, other state distillers and subject the same regulations State’s negotiate prob a solution to the diversion analysis have undertaken pre-emption we lem all can abide. twenty-first amend respect to the closing nothing I, we also note that 412 U.S. at Tax ment. (state’s regulation opinion is meant to detract from the 93 S.Ct. at 2191-92 restrict, right regulate or may not of the State “to conflict unlawful amendment, Congress regulation); Twenty-first any or act Duckworth, at transportation off the ... li- bases of reasons, the quor purchased 314. For the same State’s that has and is in fact been use, regulations distribution, must fail.11 consump- destined for or tion within borders.” Tax Commission however, note, do that much We (internal I, at 2192 upon foregoing analysis turns omitted). quotation system liquor pro in a uniform interest recrea and attendant revenue for reasons, curement foregoing the district For We do not tional activities. discern summary judgment granting court’s orders part Congress or intent on desire and denying to the State of North Dakota Department completely of Defense to summary judgment by the the motion for power to displace the traditional State’s are reversed. United States liquor in regulate unlawful diversion of LAY, Judge, dissenting. long to the bases so Chief transit as Penn, argues made no Dakota dis- like the allowances 10. North out-of-state price laws. Paul v. United who refuse to sell to the because for state tillers minimum 245, 254-61, States, expressed preference have 432- military through dealing nor- at with the their The same result channels, regula- are we convinced mal distribution and that taches Nor here. dealing merely argument excuse to cease that Paul admits of a are an State’s different tions military directly. analysis held that In the absence of for NFIs. Paul California’s however, ap contrary, presume pricefixing we for milk could not to the scheme evidence ordinary military purchases appropriated plied funds, the distillers’ motives are to from that based subject legitimately a reflect the federal statute were to decisions that business bidding process. complying competitive Id. at realities of North Da- economic a regulatory Court remanded the case kota’s scheme. at 436-37. The juris had of whether California determination regulate purchases non-appro diction to Dairies, Penn Inc. v. Milk 11. Dakota cites North funds, ap priated to which the statute did not Pennsylvania, 318 U.S. Control Commission of Here, ply. at 440-41. (1943), Id. at for the 87 L.Ed. 748 expressly apply federal statutes immunity proposition that the federal does not preclude nonappropriated to funds submis supply goods to those who contract to extend Furthermore, Penn, control. unlike sion to State government. federal In to the services regulations, California's basic Dakota’s nothing to that Con the gress found indicate Court regulatory may at the have existed time regulation scheme local in intended to override jurisdiction, acquired federal govern creasing the cost of milk to the federal need not significant for reasons we which is How Id. at 63 S.Ct. at 622-24. ment. ever, 268-69, 83 S.Ct. at See id. at subsequently delve into here. came a different the Court to which, regulation un when faced with result police powers to properly exercise dissent. respectfully I shipments dur regulate and control such regu- state question is no There through territory ing passage their sold on all bottles requiring labels lation prevent the “un necessary to insofar as directly to liquor distributors out-of-state liquor “into the in of lawful diversion” North Da- State of in the enclaves federal State,” see Hos ternal commerce be, nor does it to conceived not kota was Liquor Voyage Bon v. tetter Idlewild of, tax on the federal the effect have U.S., n. 10 Corp., 377 [84 Furthermore, government. 10]; v. 1297 n. Carter S.Ct. regulate li- attempt to an is not involved v. Arkan supra; Duckworth Virginia, enclave. on a consumption federal quor sas, S.Ct. [62 exclusively intended regulation is This 294] liquor into the this of the diversion prohibit I, atU.S. Tax Commission commerce. domestic state’s Supreme The Court thus S.Ct. at 2191-93. that Tax Commission clear It should be twenty-first clearly observed are majority upon by the II1 relied I and the au- provides states with amendment situation. present distinguishable from liquor that of thority prohibit diversion holding that enclaves located imported to federal is re- authorization state provide its boundaries. within diversion prevent labeling to quire conflicting federal is no There slights state, majority sales finding of requires the or statute which in Tax Supreme Court statement controlling stat preemption. I: Commission the earlier supersedes allegedly ute which is the State suggest that not to is This govern states that regulation simply li authority either without military in liquor for purchase ment must for the bases destined shipments quor competitive “from most stallations passing shipments such while considered source, other factors price and regulate the or to Mississippi through * * 2488(a)(1)(Supp. IY *.” 10 U.S.C. § the bases off transportation preemption of this 1986). urge federal To there. consumption Mississippi for into majority con regulation, which state the mere Thus, may be true while prevent good faith passed was cedes is through a state liquor] “shipment [of sales to of out-of-state into the importation transportation or installations, of this stat by reason [Twenty- meaning within the state meaning to the any real to eradicate ute is Virginia, Amendment,” Carter first] twenty-first amendm provisions of core 131, 137 S.Ct. [64 amendment, “a By virtue ent.2 (1944), may, a State L.Ed. 605] by traditional totally unconfined regulation, conflicting absence clear, abundantly courts preemptive intent Missis Tax v. State Comm’n 1. United States legisla- local state and to invalidate 37 United States hesitate sippi, 412 I”) "the state (1973) ("Tax reason for the added Commission tion 599, 95 our Mississippi, 421 U.S. effects Comm’n ill powerless to remove Tax ("Tax decision, government, 44 L.Ed.2d national while ”). II power, remains free has ultimate Dairies, 318 U.S. Penn the burden.” remove preemption succinctly refutes A review 624]. at [63 in its brief: argument in its contained statement a to reveal present fails case law the in- balancing and federal of a state Before intent, express im- or congressional either however, exist necessary, must there is terests regulations liquor preempt the state’s plied, to preempt area congressional intent to clear diversion” preventing "unlawful aimed state and between direct a conflict liquor the state’s established contravention Corp., Fe Elevator v. Santa laws. Rice Furthermore, as deter- system. distribution 1146, 1152, 230 [67 court, is no direct there the lower mined (1947), “we start cautions 1447] L.Ed. federal laws. the state and between police conflict historic assumption that the 28. brief at superseded Appellee’s to be states are not powers of the legislation] that was unless [federal Congress.” purpose of clear manifest Congress’s supplied.) (Emphasis Unless re when it limitations Clause Commerce JURZEC, des as Trustee for intoxicants Danuta importation of stricts Jurzec, Appellant, heirs of Wieslaw distribution, use, consumption for

tined v. Idlewild Hostetter its borders.” Corp., 377 U.S. Liquor Voyage Bon CORPORATION, MOTORS AMERICAN L.Ed.2d 350 330, 84 S.Ct. Corporation, Motors Sale American history of in the nothing is There Jeep Corporation, mili which states of all the effects exempt from tary shall be procurement in its types of state America, Appellee. fact, position would such liquor. No. myriad of state light ridiculous suppli distillers applied to regulations Appeals, United States Court regulations Compliance liquor. ers Eighth Circuit. materials, raw importation of regarding the 15, 1988. June Submitted distillery or brew operations of general bottling, and employees, ery, treatment Sept. Decided cost of necessarily increase shipping pur mandate to congressional

liquor. The military personnel at

chase im nonetheless competitive” terms

“most ex of these accepts presence

pliedly that increase factors

penses as unavoidable prices.3 available

the lowest significant ex- suggests that

The record if out-of-state be incurred

penses would comply with

liquor distributors reasonable to It is also regulation.

Dakota compliance expense of

assume that passed along

would be liquor from purchased if it price, This increase distributors.

these

however, the result taxation neither attempt

nor an solely

federal enclave. of out-of- prevent

intended bases. liquor destined such, state within

As to enact this twenty-first amendment government must The federal

regulation. resulting cost

accept the increase it considers liquor when

out-of-state purchase liquor.

sources from dissent.

I therefore beverages "alcoholic shall government’s services divert armed of the federal 3. This conclusion purposes personnel, or for bol- is further acceptance these unauthorized * * federal, state, regulation prohibit- or local laws respect to state violate stered with di- by Department 1015.3-R, of Defense ing ch. DoD fF3. no member states that rective

Case Details

Case Name: United States v. State of North Dakota, Robert E. Hanson, State Treasurer of North Dakota

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Sep 9, 1988

Citation: 856 F.2d 1107

Docket Number: 87-5334

Court Abbreviation: 8th Cir.