we'll hear argument next in case eight hundred ninety six tennessee wine and spirits retailers association versus blair mr george ski mr chief justice and may please the court in the wake of the nation's failed experiment with prohibition the twenty first amendment restored to the states the powers that they previously had under the wilson and webb canyon acts in exercising those powers both before prohibition and then its immediate aftermath states an act of residency requirements like ten to regulate the sale of alcohol within their territory all along the way this court recognized the state's power to do so as part of their virtually complete control over how to structure the liquor distribution system under granholm that unbroken undisputed history is dispositive residency requirements like tennessee's are protected from dormant commerce clause scrutiny because they were authorized by the wilson and webb kenyon act and uniformly considered constitutional at the time  ask you to clarify for me your position just as such in his dissent basically said if your legislature came and said we don't want out of state coast sailors distributors or retailers to be in our chain of distribution because they're going to take business away from our local and to prices period end of story are you saying that the state can do that are you disagreeing with justice with judge sutton or do you think that there's an economic protectionism protection against what a state can do so i don't think that there is an economic protectionism exception to the twenty first amendment but even if there were one as judge sutton recognized in applying  to the two year residency requirement the probably would still prevail except we have a difficulty there which is you can't look at just legislation piecemeal you have to look at it as a whole that was written as a whole it's one paragraph that says two years plus ten so it's really twelve years because she and he said there's no economic justification for a ten year residency requirement so what you have to look at is not whether it's two years but whether there's any reason for a twelve year residency requirement and if she said no to ten then it's not a twelve so just assume here that that gets us into a  let's go back to my initial question yes it does and that's a separate question and you can argue that went back and forth but my fundamental question is the you believe the twenty first amendment permits sta to discriminate against out of state interest then does that mean baucus grant hold all our jurisprudence that has invalidated certain state longs w wrong is that is are you suggesting we should just disavow all those cases and forget them no no we're not and let me address both by knowing i want to limit it to producers but that's not the way that  no it's not and let me explain how to harmonize it granholm in granholm where it mandated a historical test the question and granholm which all nine justices agreed upon was what were the states pre prohibition powers now the disagreement in granholm was about whether states could discriminate against out of state products pre prohibition but the framework was not an economic protectionism framework it was a historic day question how can i come back to that what i where i thought just the sort of my or start it and ask you just very simply can i stay in that a ten year residency requirement and if not why not there would not be a dormant commerce cla problem with a ten year residency requirement there might be some other constitutional challenge to that but it would be immune from dormant commerce clause scrutiny as long as it treated in state and out of state products the second suppose if it was a grandparent's requirement so point of the twenty first amendment was to constitutionalized the pre prohibition powers which included the power to discriminate against out of state interest if you think about that the three tier system and the in state wholesaler requirement for example that this court in gran itself said was unquestionably legitimate that discriminates against ok even if i may just understand the contras of your argument so that to pick up on something else just a sudden lie or referred to suppose you have the state statute that says for the exclusive purpose of  protecting in state retailers no you must be a resident of the of the state for two years five years in order to get a license would that be  would that be constitutional i still don't think there would be a dormant commerce clause problem with that now under baucus if you're looking at the language and baucus baucus does talk about economic protectionism but it does so in the context of a case that was discriminating against out of state product if the rule from dormant commerce clause is to stay can do what it wants within its borders because it's regulating liquor i don't know why our cases would be right under your theory that they can't put a different tax on different products because under granholm and under the history pre prohibition states could do virtually what they wanted within their borders but not everything and one important carve out and this is reflected in the text of the wilson act itself is that they had to had to treat in state and out of state products the same the wilson act itself says this is in the blue brief it page twenty six it's twenty seven u s c one twenty one that states have the power to ban the importation of liquor as long as they treat it in violation of laws in the exercise with police powers within the state as long as they are treating liquor to the same extent and in the same manner as though such liquors had been produced in the state or territory so the  basically but not based on products and the key point from baucus was that it was about discrimination based on product if the rule that came out of baucus were just a straight economic protectionism test granholm would have been a much easier case gran holm could have been written by saying the question is do the michigan in new york law is at issue are they meant to protect in state producers or not that wasn't the analysis that granholm used instead again granholm set forth this historical task that required the court to look back at the pre prohibition powers and the the wilson and webb canyon act first of all empowered states to regulate interstate shipment of alcohol so long as they treated in state and out of state alcohol the same and then second at that time pre prohibition states also had the inherent authority to regulate instate sales so combined that meant that states pre prohibition were free to structure the in state liquor distribution systems free from commerce clause scrutiny again as long as they treated in state and out of that's right but that's because the twenty first amendment and the pre prohibition powers that we're talking about are common our powers related to overriding the dormant commerce clause specifically not other constitutional provisions like the first amendment  distribution system pre the wilson act but the wilson and webb canyon acts which were constitutionalized in the twenty first amendment were all about permitting states to act in ways that did restrain commerce but they weren't about permitting states to act in ways that violated the first amendment or other you know individual rights for example and so and wrong because the law then did provide for racial discrimination and  there's nothing in the provision that limits itself to the commerce clause it just says the transportation or importation into any state territory or position of the united states for delivery or use their in of a intoxicating liquors in violation of the laws there is here by prohibit it i don't actually see in that any reference to the commerce clause or to any other limiting principle yet we have principle yes but all this court cases including the ones that have found limiting principles and granholm itself all explain that the twenty first amendment has to be understood in light of what it was trying to achieve which was constitutional izing these statutes and these statutes we're dealing with commerce notwithstanding there are broad language the problem that they were trying to solve in that state powers that they were trying to protect were related to powers because let me let me ask you something about that i do understand that the twenty first m was geared towards giving states greater freedom in controlling the distribution and sale of liquor in their jurisdiction but i'm having a hard time understanding how the residency requirement does when it comes to a person's preexisting residency so yes we understand that having someone there who's responsible to the community is necessary that inherent in the three tier system but why is it inherent in the three suits here system that you have to have someone who's only a local to it there are many states who three through your system doesn't require that they function fairly well i don't understand the necessity of that so first i don't think the question is whether it's necessary or not the point of the twenty first amendment is the courts aren't supposed to impose that kind of scrutiny states get to decide what distribution system works within their state and where no one size fits all selected said i agree but there are some parts of the discrimination nation part of the of the commerce clause that we say still of fact this you're saying they can't use it to violate the first of and then we've said you can't use it to discriminate against products although nothing in here says you can't do that i'm having a hard time understanding explain to me why it's this is let me make two points one just quickly going back to your earlier question about the text of the twenty first amendment the text does refer to the delivery or use of alcohol so that that is invoking the sort of commerce clause concern that the history confirms but to get to your other question about the purposes of a durational residency requirement everybody agrees that a residency requirement of some sort is constitutional notwithstanding that it would otherwise raise commerce clause concerns and the durational component of a residency requirements serves very much the same interest for example residency requirements are important because they allow states to conduct background checks having somebody be a resident for a longer period of time allows the those who decide whether to issue licenses to actually observe the person and to observe the person's character and give the state a better ability to decide whether to issue a license and to conduct the background check well not you're arguing that they serve a public health and safety purpose but i thought you you answered my previous question by saying it doesn't matter if the only purpose of the regulation on this is spelled out right in the statute itself is economic protectionism that does not create a dormant commerce clause problem because the twenty first amendment gave the states  authority so so i think that's right i think there is no historical pedigree for an economic protectionism sort of exception if the court were to engage that in that it would essentially be a standard less inquiry no i think we're turning maybe you turn it around and maybe my understanding of history is wrong so you'll correct me but i thought that the purpose of the eighteenth amendment was a determination by those who adopted it in ratified it that alcohol created a public health and safety problem and i thought the of the twenty first amendment and section two of the twenty first amendment was to say this is a determination the public health safety determination is not going to be made on the national level it is going to be made by the states but none of that seems to me that anything to do with economic protectionism but where am i wrong on that and what does that what is the basis for thinking that the purpose of were a purpose of section two of the twenty first amendment was to authorize the states in this one area dealing with alcohol to engage in protectionist activities that wouldn't be permitted with respect to any other commodity i don't think the purpose was specifically to allow protectionist activity but i do think that the purpose was to shield state laws from scrutiny under the dormant commerce clause and for sure one way that states might exercise that authority would be economic protectionism but there is no historical pedigree for that kind of a carve out from what is otherwise virtually complete authority for states to legislate in this area free from dormant commerce if the court when you say virtually complete authority and you've said several times to point to the twenty first the moment the purpose of the twenty person moment the problem that i'm having in thinking about this is that tat the tax of the twenty first amendment does not support that as i read it and you mentioned delivery or use but it doesn't just say the states have complete authority over delivery or use it's talking about the transportation or importation in any state and why isn't that most naturally red to allow states to remain dry and therefore being in transportation or importation but not to otherwise impose discriminatory or is justice alito says protectionist regulation it's two points in response to that just as cabinet first the twenty first amendment has to be read against the backdrop of the inherent authority that states already had to regulate the distribution systems within their system the twenty first amendment didn't need to say that expressly because it was understood at the time second this cordon it cow and this is going to stop you there i'm sorry where do you get that that idea that it's somehow  backdrop was to give the states authority to enact protectionist legislation or legislation that discriminated against out of state producers retailers wholesalers so i direct you to judge sutton's dissent in the six which walks through the understanding  through all of that and i and i don't see that in the web kenyon act that the things that led up to that were not the act was not as i understood it and acted to enable states to but when the twenty first amendment was in acted obviously that was the end of prohibition but it also restored to the state's powers that they previously had to regulate regulate authority within their borders i'd also direct the court to meet cal this is it for forty five at one of six which said that although the twenty first amendment on its face gives the states control over the transportation or importation such control logically entails considerable regulatory power not strictly limited to importing and transporting alcohol that too is referring to the courts and general frankly this is just as may please the court this court has repeatedly stated most recently in granholm itself that section two of the twenty first amendment gives states virtually complete control over how to structure their domestic liquor distribution systems now questions have obviously arisen already this morning about whether residency requirements were part of that structure in they were we know that for example from the vance case in eight hundred ninety eight the the court's discussion there is very instructive vance representing quite a number of states and including tennessee i guess maybe these states are very very in residency requirements and i want to take you back to justice is question tennessee appears to be on one end of the spectrum and is there anything in your argument that would give us a way to say you know when there is a twelve year residency requirement when there's a one hundred percent shareholder requirement these have stopped being a public health and safety measures these are clearly protectionist and we should not allow those to occur well i agree with my co counsel that there would be a dormant commerce clause claim there because the twenty first minute he stated was designed to supplant or displace dormant commerce clause analysis now there may come a point where the residency requirement is so extreme or so excessive as to be truly arbitrary and then it could fail the fourteenth amendment's background presumption well it's not arbitrary if you are intending to promote economic protectionism and as i understand your position it's that that's part of the state's parag have still and then you know the sky's the limit every the more you do the more protection the  well for example it's our position in this case that the interplay between the initial two year residency requirement for a license under tennessee law and the ten year renewal requirement it's hard to see a rational basis for that it seems like a trap for the unwary that that's not a dormant commerce clause problem but it could be a violation of the background rationality minimal rationale one requirement of the fourteenth amendment why is that to pick up on justice question economic protectionism is rational it's in certain circumstances it's disputed but it's rational and maybe a joint commerce clause problem and you're saying no it's no dorm or commerce clause problem then it would seem i'm repeating and sky's the limit my comment went simply to the interplay between financial requirement and the subsequent requirement you have been twelve years no dormant commerce clause problem you said and the rationality argument would be that it's designed to favor in state retailers that's rational our position would simply be that if some point down the line that there could be a failure of minimal rationale i guess that's certainly not the case with respect to the two year requirement which there i guess the question is if you can see in that much what's the delta what's the difference between what the dormant commerce clause would otherwise disallow and what i take it  to be your position the equal protection clause would would permit if it's if it's irrational under one why is it rational under the other and are we just going to recreate our government commerce clause prison cells where don't think so all legislation is subject to the fourteenth amendments background requirement of minimal rationality we don't think we're close to that here and the protectionism lens is just the wrong lens through which to look at this issue because those  law any liquor store has to use paint made in tennessee asphalt made in tennessee for the parking lo but i suppose at some point if we're talking about the use of pain then we're really getting pretty far afield from the state structuring the in state distribution and say there's just as good a reason for saying out of state owner has to be good live here for twelve years is there is to say paint in fact a better reason because tennessee paints really good but this the statute here your honor goes to the question of who can question that followed from my last is wouldn't it be a better idea if we said the dorm and commerce clause does apply and then let the state come back and say we can meet that test we have real health and safety concerns here and our law is well tailored to address those concerns and so it's not a dark dormant commerce clause violation i think that approach which is essentially judge sutton's approach would still embroiled the courts in the kind of line drawing that the twenty first amendment was designed to relieve them by by creating with this court is called an exception to the normal operation of the dormant commerce clause it would be at odds with the broad regulatory discretion that's that's conferred by the twenty first amendment but but it's i think it's important to note also that the respondents approach which is not that approach right there approach says no discrimination of any kind into the twenty first amendment and that approach really would leave the twenty first amendment with no meaningful role to play in our modern constitutional order think about the three tier system for a moment this court described in granholm not only as unquestionably legitimate but also as involving sales to and purchases from an in state wholesalers that arrangement disadvantages out of state business interests it wouldn't fly we were talking about milk or trash but this court has treated it as unquestionably legitimate because it's part of the state choice about how to structure the in state sale of this particularly dangerous product that has a distinctive constitutional treatment under the twenty first amendment in the end respondents are asking this court to treat alcohol like any other article of commerce but it's not it was actually one hundred years ago today that the eighteenth amendment was was finally ratified and fourteen years after that failed experiment the twenty first amendment restored to the individual states the broad police powers over delivery and sale of this product within their borders so long as they treated out of state and in state products the same and that proviso comes directly from the text of the wilson act which was congress's instruction as to how and to what extent to overturn this court's original package doctrine case law from the late nineteenth century that was the line congress drew and no further gran same line it said we're not going to import all of the dormant comers clauses nondiscrimination principles into the twenty first amendment but we are going to import so much of it as the historical analysis in the wilson act requires as justice kavanagh pointed out in an earlier question the twenty first amendment is about the transportation or importation of alcohol into a state how do you get from there to a durational residency requirement that is imposed on the owner of a retail outlet in the state suppose i am not a resident of tennessee and i want a license to operate an entity that will sell only tennessee whiskey how would that fall within the terms of the twenty first amendment well if i can quote from it cal in the way that my colleague was beginning to do what the court said there is very instructive it said yes in terms of the amendment gives states control over transportation and importation but of course such control including still logically entails considerable regulatory power not strictly limited to importing and transporting alcohol it's true in other words that the twenty first amendment speaks  importation that would also speaks of delivery and use but it does so speaks of transportation for the purpose of the word for use for the purpose of protecting the state's ability to control the terms on which delivery or use will take place within its borders and that's exactly what's at issue here the twenty first amendment other words presupposes and safeguards the state's broad control over in trustee distribution and sale and this grant home and and baucus are not to the contrary what they do is undertake a historical analysis and recognize a proviso to that but the broad rule still stands states have virtually complete control mr philips thank you mr chief justice and may please the court i like to start with the history because it seems to me that there's a fundamental difference here in this court actually has answered the question of what the history of the wilson act and what kenyon act in the twenty first amendment was designed to get at the language of the twenty first amendment speaks directly to exactly what the purpose of this entire exercise was the problem that the two spreadable statutes were designed to deal with was the fact that states had complete authority to say we're not going to allow any use or sale of alcohol within our states and had absolutely no authority to stop the import from other states of alcohol in the first instance in the original package doctrine they could sell it to retailers and then ultimately beyond that they could sell it directly to consumers and the statutes were passed to stop that specific practice and and then we go to the prohibition just as somebody already noted is one hundred years ago today and then we come back and we repeal the prohibition and the language in this and section two tracks very closely with the language and the intention it's not designed it's not a grant of authority it's a protection against allowing out of state operators to come in and sell directly to liquor liquor under certain circumstances that was the entire purpose of it that's what the court and baucus and that's what the court held  it was not the quota doubts about the scope of the amendments authorization section two notwithstanding one thing is certain the central purpose of the provision was not to empower states to favor local liquor industries by a reckoning barriers to competition and candidly i don't know that the court had to go past baucus when it decided graham because the that those statutes were clearly just as economically protectionist as this one is but the principle from baucus is if a statute has no purpose and this statute has no purpose except to be protectionist of the local industries it's unconstitutional is that your standard because he seemed to slide back and forth a little bit between standards and your brief for i thought that you did maybe  could if a state can come forward with any purpose other than protectionism the state wins no no it's when the state doesn't come forward with anything except protectionism the state loses to those a c comes forward and says we like this because it's protectionist we were trying to do some protection of things and we also coincidentally we found a way that our protectionist interests matched up completely with our health and safety interests what happens then then you're in graham and that's that's what i mean granholm i think could have concluded anyway that the statutes involved there were really just economic protectionism and not gone beyond that but it did go beyond that and what it said is if in fact the state is engaged in discrimination under the under normal co clause standards it's presumptively unconstitutional and the state must come forward and justify the discrimination on the basis of nondiscriminatory less restrictive means of achieving the same objective and under that standard that's i'm perfectly comfortable with that standard because there's no doubt that what we're talking about here is rank discrimination on the basis of the end of the or gummer's the or it also says in granholm the twenty first amendment grants the state virtually complete control as to how to structure the liquor distribution system right we have previously recognized that the three tier structure is unquestionably legitimate and then we go back into the history it's just history but it is history and we discover that the states the vast majority always have had rules like the tennessee rule and today thirty four states apparently pretty much count have rules just like this except maybe not the same number of years haughty and so so this amendment was inactive against a history this court has several times say we honor that history and the history favors the of the side so so what do we do about why i don't think the history does favor the other side probably not i think it's pretty clear to me that there is nowhere near thirty four states that have durational residency requirement so that maybe but they say you have to be a resident in some form or other but there are a lot of my and my can and my client is here as i said as we say in our brief to actually both of our clients are here to say we are not challenging the three tier system all we are seeking is the opportunity to compete and to this market see i the problem i have is it seems i don't think that you would challenge a state the state's residency requirement moving forward meaning that almost all of the to me why is a pre registration or pre licensing residency requirement of the normal range one or two years because i  durational residency requirement is by definition discriminating against out of state interest unless you're going to limit it just to producers which is an irrational limitation this course never adopted with respect to any commerce clause analysis we are being discriminated against and therefore it's the state's burden to come forward and to justify that discrimination there is no rational basis for the two year ban that they put in place here the tennessee attorney general himself has twice looked at this ban and said it doesn't remotely serve any purpose that's designed under the twenty first amendment or dealing with alcohol or public safety or public health or anything else it's only designed said to her niece and her only me represent the government but the legislature gave a reason and the reason it gave was because this is alcohol were protecting the public interest that's fine but that doesn't remotely explain the two year durational residency requirement that just explains all the other regulations that were adopted at the same time including the twelve year residency requirement so that it's their burden and they should come forward not just in making statements to the legislature they can come into court and that's when granholm says look you discriminate against out of state interests that triggers a burden on the state to justify the limitation the discrimination that it's imposed and what does it say in this case it said absolutely nothing it didn't it didn't follow single affidavit it didn't put forward any kind of witness it didn't put on any defense whatsoever and the reason is pretty clear the sole purpose of the statute was has my friend here who's who represents the retailers association proves beyond any question what this is designed to do is be exclusively protectionist which is why in some places we say that's a basis for the court to reach a decision because this is exclusively protectionist but if you don't accept that our fallback position is gran holm requires them to come forward with more than they have let sassing question is yes of course but to have to be able to have what is called the three unquestionably the jit of it right virtually complete control over how to structure liquor distribution a liquor distribution system employs people and how can you structure you can but you could structure a liquor system involving the people who are to work there the people who are to work there are an  part of such a system and therefore given the case law and the history in the absence of any discrimination forbidden by others this is been the law for a hundred years other kinds of of restrictions equally to both in state operators and out of state operators we don't have any problem with that so if your question to go back to your hypothetical about paint is if they say if you're an in state operat right but i'm stuck where justice briar's and i just want to be another opportunity to discuss the history here alcohol has been treated differently than other commodities in our nation's experience for better or worse and and we have the twenty first amendment the human line decision for example in one thousand nine hundred two that required the use of a resident representative of to sell alcohol and i didn't see it at that address that case anywhere in your brief predates the wilson act it predates web kenya and it specifically says categorically that you cannot states cannot discriminate against out of state sellers by imposing a tax on them and i guarantee you that under the under the approach offered by my friends on the other side they read the twenty first amendment to say of course you can impose a tax on them because you regulating the sale of alcohol and if you regulate the sale of alcohol in a wholesaler in those circumstances you can put a billion dollar tax on him as long as it's within the twenty first amendment and that's constitutional and that predates all of these things and nothing in the wilson act nothing in the web kenyan act and certainly nothing on the second amendment second to the twenty first amendment was designed to overrule walling and indeed this court said in granholm granholm specifically that that case and scott in the third case whose name is going to escape me turn in all three survived section two of the fourteenth amendment so while it is true that they can they can't they have virtual control virtually control virtual controls of males they have the ability to control the structure that's simply a recognition of the three tiered system and just to go back to the history what's that what's the purpose of the three tiered system it's to avoid the tide sales arrangement the gave rise to the prohibition in the first place you want to have three distinct which says that the twenty first amendment empowers the state to require that all liquor be sold by an in state wholesaler another words that is interpreted in the three tiered system i think too and tale favoritism of instate interests can we would regard ourselves as an in state retailer within the meaning of that we have satisfied every condition necessary to operate in state with a presence in state of a very large facility that can be examined can be determined to be in compliance can satisfy every single one of the states to phillips yes i do agree with you on that that i would think that the next case would be much as we've been quill for example and requirement of physical presence in state for the next lawsuit would be that yes this three tier system is in fact discriminatory by requiring some sort of physical presence and state and under dog chorus costers put you have a point you have a good point fundamentally at odds with my client's business model to be looking to undo but it isn't as a business model just to try and operate as the amazon of liquor no amazon wants  the amazon of liquor ice ever may had some point no my client operates on a on a more brick and mortar business model that says we're perfectly comfortable operating within the sphere of regulation that the state imposes on every end state operator and all we're seeking to have is not to be discriminated against in general to me appreciate the web can you know at nine hundred thirteen and it says you can't send but we know at the time that these states did all or thirty or twenty or fifty have laws that said when you in fact structure your distribution system in our state you have to have local residents that's one of our employee requirements so when they passed web kenyon they mean all of them except that one and there could have been a lot that were in fact violation of dormant every state law that happened to be involved with with the job that there were a lot of it said you have to be a resident but there were probably a lot of this you said earlier that also probably let's do discriminate on the basis of race discrimination on the basis of read under the laws of the state so broadly as to mean any law you have to be valid laws and so you just go back it just brings you back to the same fundamental question just prior is it permissible for the state to discriminate w durational residency requirement not just a presence but with a durational requirement to go back to just discourse which is question i mean i'm trying to figure out what kind of opinion we could write mr phillips that says you win but then when the next case comes along and the next case is somebody that says we don't like this brick and mortar stuff we don't want to have any physical presence at all and the state is preventing that and in doing so the state is discriminating against out of state companies and you know you said that that's not valid so where in title to do what we want to do too i think there are two ways you can go about this the first one would be i mean you can write an opinion that just says baucus again this is does is really protectionist and ought to be declared unconstitutional leave for another day the rest of those kinds of issues the second one is if you want to take up the question and say you know what why is why is brick and mortar more important well brick and mortar is fully consistent with the three t and we'll leave for another day whether the three tier system if it involves a lot of things for another day but they all seem to be demanded by the principles that you are asking us to adopt what i don't think so all i'm asking the principles  not discriminate against us on the circumstances where we are clearly exactly identical situated and where the state's interest in protecting against alcohol can be fully protected and leave it for another day if there are other rules that are challenged to see what those rules are guess what how they operate and what's the state's justification because the hypothetical i was attempting to pose is a good fedak away the state is act in a discriminatory manner and i guess  i'm asking you for is why would some kinds of discrimination be permissible and other kinds of discrimination not be permissible because under certain circumstances there may not be any less discriminatory way of achieving the clause is if you discriminate it's it's almost per se unconstitutional granholm didn't seem to go that far and just talked about narrow tailoring and nondiscriminatory means of achieving its objective and i can imagine a close case again and surely you know the state can achieve all of the regulatory interests it wants to achieve through ver dealing with virtual sellers from out of state just as easily as it can with the physical presence sellers in the state i mean surely that's tomorrow's argument i'm perhaps but at least a silly one that leaves just like you have the absolutely milk just like books but just of course if somebody is going to at that point presumably the state will say this is why we can't regulate effectively this is why we won't have the orderly market this is why we need this restriction but what tennessee has never done here is ever tried to explain why a durational residency requirement of ten twelve and why it is all stockholders to be and town all the do this all the directors etc that's the issue before this court this is the me so clearly beyond what the twenty first amendment was designed to achieve that the courts should declare it unconstitutional  first respondents concede a residency requirement a durational residency requirements follows from that first because states get to define what residency is and second because the same interests that serve a presence requirement also serv durational residency requirement duration facilitates background checks it facilitates investigation and force into the law because somebody who's been there for a while is more likely to have substantial assets that can be in force that can be seized and is less likely to flee at the first sign of trouble once you concede that residency requirements are ok courts shouldn't be second guessing the extent to which those very same interests are served by durational residency requirement the whole point of the twenty first amendment was to take that out of the hands of courts with respect to the history mr phillips and to scott both of those were cases like granholm and baucus that involve taxing out of state products more heavily than in state product that is the exception that granholm recognize to the states virtually complete authority but when we're talking about purely in state regulation like the direction we're durational residency requirement for a liquor license that is what the twenty first amendment is concerned with there is no economic protectionism test that is either consistent with the history or is it mr paul if the court were to go down that road there would be challenges to dozens of state laws and how do we draw a line about whether thirty days is protectionist a year is protection is two years is protection is it at that point the inquiry just becomes the same as any other dormant commerce clause challenge and the one thing we know from the twenty first amendment is that alcohol is to be treated differently for dormant commerce clause purposes respondants rule no room for that lastly even if there were an economic protectionism test for the reasons given by judge sutton in his dissent below and for the reasons i said earlier tennessee's law satisfies the necessary level of scrutiny which is not a searching sort of strict scrutiny but just is there a plausible reason for the law that makes it survive thank you counsel cases submitted