Constitutional challenges to amendments to Michigan’s Liquor Code; 2016 MI Pub. Acts 520, § 203(3) & (15); Whether the Twenty-first Amendment permits Michigan to allow Michigan’s retailers to offer at-home deliveries within the State while denying the same option to an Indiana retailer who does not have a Michigan retail license; U.S. Const. amend XXI, § 2; The Commerce Clause; U.S. Const. art. I, § 8, cl. 3; Tennessee Wine & Spirits Retailers Ass’n v. Thomas; North Dakota v. United States; Granholm v. Heald; California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc.; Jelovsek v. Bredesen; Byrd v. Tennessee Wine & Spirits Retailers Ass’n; Bridenbaugh v. Freeman-Wilson (7th Cir.); Southern Wine & Spirits of Am., Inc. v. Division of Alcohol & Tobacco Control (8th Cir.); Cooper v. Texas Alcoholic Beverage Comm’n (5th Cir.); Discrimination; General Motors Corp. v. Tracy; Whether Michigan’s decision to limit the ability to deliver directly to consumers to Michigan retailers was justified as promoting the non-protectionist, legitimate state interest of public health & safety; Bacchus Imports, Ltd. v. Dias; Arnold’s Wines, Inc. v. Boyle (2d Cir.); Wine Country Gift Baskets.com v. Steen (5th Cir.); The Privileges & Immunities Clause of Article IV; U.S. Const., art. IV, § 2, cl. 1; McBurney v. Young; U.S. Const. amend. XIV, § 1, cl. 2; Crowley v. Christensen; Mugler v. Kansas; Bartemeyer v. Iowa; Remedy for an alleged violation; MCL 436.1925; Heckler v. Matthews; Cherry Hill Vineyards, LLC v. Lilly

[This appeal was from the ED-MI.] The court reversed the district court, holding that the Twenty-first Amendment permits Michigan to allow its retailers to offer at-home deliveries within the State while denying the same option to an Indiana retailer who does not have a Michigan retail license. Michigan has a “three-tier” system for alcohol distribution—producers, wholesalers (the State), and retailers. Plaintiff-Lebamoff, an Indiana retailer, along with several Michigan wine consumers, challenged the recently amended Liquor Control Code, which permits in-state retailers to deliver alcohol directly to consumers through state-licensed “third party facilitators,” or common carriers, such as FedEx or UPS. The court concluded that Michigan’s decision to limit the ability to deliver directly to consumers to Michigan retailers could be justified as promoting non-protectionist, legitimate state interests, including public health and safety. Moreover, the court noted that because a similar Indiana law has been upheld, if the Michigan law was not upheld, this would mean that “Indiana retailers could make direct deliveries within Michigan, but Michigan retailers could not do the same in Indiana. That’s no way to run a railroad—or manage cross-border trade.” The court rejected Lebamoff’s claim that the law violates the Privileges and Immunities Clause of Article IV, noting it is well settled that the right to sell alcohol is not “a privilege or immunity under the similarly-worded Fourteenth Amendment.” It also noted that even if the district court had been correct in ruling that the Michigan law violated the dormant Commerce Clause, it should have returned things to the pre-2017 status quo, not altered “Michigan’s alcohol distribution system by extending delivery rights to out-of-state retailers[.]” Remanded.