491 U.S.

324
109 S.Ct. 2491
105 L.Ed.2d 275

John F. HEALY, et al., Appellants,

v.
The BEER INSTITUTE, et al. WINE AND SPIRITS
WHOLESALERS OF CONNECTICUT, INC., Appellants, v.
The BEER INSTITUTE, et al.
Nos. 88-449, 88-513.
Argued March 28, 1989.
Decided June 19, 1989.

Syllabus
A Connecticut statute requires out-of-state shippers of beer to affirm that
their posted prices for products sold to Connecticut wholesalers are, as of
the moment of posting, no higher than the prices at which those products
are sold in the bordering States of Massachusetts, New York, and Rhode
Island. Appellees, a brewers' trade association and major producers and
importers of beer, filed suit against state officials in the District Court
challenging the statute under the Commerce Clause. The court upheld the
statute on the basis of Joseph E. Seagram & Sons, Inc. v. Hostetter, 384
U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336. The Court of Appeals reversed,
holding that the statute violated the Commerce Clause by controlling the
prices at which out-of-state shippers could sell beer in other States, and
that appellants' argument that the statute was a proper exercise of the
State's regulatory authority under the Twenty-first Amendment was
foreclosed by Brown-Forman Distillers Corp. v. New York State Liquor
Authority, 476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552.
Held: Connecticut's beer-price-affirmation statute violates the Commerce
Clause. Pp. 335-343.
(a) The statute has the impermissible practical effect of controlling
commercial activity wholly outside Connecticut. By virtue of its
interaction with the regulatory schemes of the border-states, the statute
requires out-of-state shippers to take account of their Connecticut prices in

setting their border-state prices and restricts their ability to offer

promotional and volume discounts in the border States, thereby depriving
them of whatever competitive advantages they may possess based on the
local market conditions in those States. Moreover, the short-circuiting of
normal pricing decisions based on local conditions would be carried to a
national scale if and when a significant group of States enacted
contemporaneous affirmation statutes similar to Connecticut's that linked
in-state prices to the lowest price in any State in the country. It is precisely
such results that the Commerce Clause was meant to preclude. BrownForman, 476 U.S., at 579, 581-583, 106 S.Ct., at 2084, 2085-2087; cf.
CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 88-89, 107 S.Ct.
1637, 1649-1650, 95 L.Ed.2d 67. Pp. 335-340.
(b) The statute, on its face, also violates the Commerce Clause by
discriminating against interstate commerce, since it applies only to
brewers and shippers engaged in interstate commerce and not to those
engaged solely in Connecticut sales, and since it is not justified by a valid
purpose unrelated to economic protectionism. Pp. 340-341.
(c) Appellants' reliance on the Twenty-first Amendment as authorizing the
statute regardless of its effect on interstate commerce is foreclosed by
Brown-Forman, 476 U.S., at 585, 106 S.Ct., at 2087, which explicitly
held that that Amendment does not immunize state laws from Commerce
Clause attack where, as here, their practical effect is to regulate liquor
sales in other States. P. 341-342.
(d) Appellants' reliance on Seagram supra, to validate the statute is also
foreclosed by Brown-Forman, 476 U.S., at 581-584, and n. 6, 106 S.Ct.,
at 2085-2087, and n. 6, which strictly limited Seagram scope and
removed the underpinnings of its Commerce Clause analysis. To the
extent that it held that retrospective affirmation statutes do not facially
violate the Commerce Clause, Seagram is no longer good law, since such
statutes, like other affirmation statutes, have the inherent practical
extraterritorial effect of regulating liquor prices in other States. Pp. 342343.
849 F.2d 753 (CA2 1988), affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and KENNEDY, JJ., joined, and in
Parts I and IV of which SCALIA, J., joined. SCALIA, J., filed an opinion
concurring in part and concurring in the judgment, post, p. 344.
REHNQUIST, C.J., filed a dissenting opinion, in which STEVENS and

O'CONNOR, JJ., joined, post, Pp. 345.

Robert F. Vacchelli, Newington, Conn., for appellants.
Jeffrey Ives Glekel, New York City, for appellees.
Justice BLACKMUN delivered the opinion of the Court.

The State of Connecticut requires out-of-state shippers of beer to affirm that

their posted prices for products sold to Connecticut wholesalers are, as of the
moment of posting, no higher than the prices at which those products are sold
in the bordering States of Massachusetts, New York, and Rhode Island. In these
appeals, we are called upon to decide whether Connecticut's beer-priceaffirmation statute violates the Commerce Clause.1

* Although appellees challenge Connecticut's beer-price-affirmation statute as

amended in 1984, this litigation has its roots in the 1981 version of
Connecticut's price-affirmation scheme. Having determined that the domestic
retail price of beer was consistently higher than the price of beer in the three
bordering States, and with the knowledge that, as a result, Connecticut residents
living in border areas frequently crossed state lines to purchase beer at lower
prices, Connecticut enacted a price-affirmation statute tying Connecticut beer
prices to the prices charged in the border States. See United States Brewers
Assn., Inc. v. Healy, 532 F.Supp. 1312, 1314, 1316-1317 (Conn.1982). In an
effort to eliminate the price differential between Connecticut and the border
States, Connecticut required that brewers and importers (out-of-state shippers)2
post bottle, can, and case prices for each brand of beer to be sold in
Connecticut. Id., at 1317. These posted prices would take effect on the first day
of the following month and would continue without change for the rest of that
month. Conn.Gen.Stat.Ann. 30-63(c) (1975 and Supp.1982). The 1981 statute
further required that out-of-state shippers affirm under oath at the time of
posting that their posted prices were and would remain no higher than the
lowest prices they would charge for each beer product in the border States
during the effective period. 30-63b(b), quoted in 532 F.Supp., at 1314, n. 3.
Moreover, in calculating the lowest price offered in the border States, the
statute deducted from the reported price the value of any rebates, discounts,
special promotions, or other inducements that the out-of-state shippers offered
in one or more of the border States. 3 30-63c(b), quoted in 532 F.Supp., at
1314, n. 4. To the extent that such inducements lowered border-state prices, the
statute thus obligated out-of-state shippers to lower their Connecticut prices as
well. 4

In 1982, a brewers' trade association and various beer producers and importers
(a subset of the appellees in the instant litigation) filed suit in the United States
District Court for the District of Connecticut, challenging the 1981 statute as
unconstitutional under the Commerce Clause. The District Court, relying
primarily on this Court's decision in Joseph E. Seagram & Sons, Inc. v.
Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966), upheld the 1981
law. United States Brewers Assn., Inc. v. Healy, 532 F.Supp., at 1325-1326.
The Court of Appeals, however, reversed. It held that the 1981 Connecticut
statute was facially invalid under the Commerce Clause because it had the
practical effect of prohibiting out-of-state shippers from selling beer in any
neighboring State in a given month at a price below what it had posted in
Connecticut at the start of that month. The court explained: "Nothing in the
Twenty-first Amendment permits Connecticut to set the minimum prices for
the sale of beer in any other state, and well-established Commerce Clause
principles prohibit the state from controlling the prices set for sales occurring
wholly outside its territory." United States Brewers Assn., Inc. v. Healy, 692
F.2d 275, 282 (CA2 1982) (Healy I ). This Court summarily affirmed. 464 U.S.
909, 104 S.Ct. 265, 78 L.Ed.2d 248 (1983).

In 1984, the Connecticut Legislature responded to Healy I by amending its

beer-price-affirmation statute to its current form. The statute now requires outof-state shippers to affirm that their posted prices are no higher than prices in
the border States only at the time of the Connecticut posting. Conn.Gen.Stat.
30-63b(b) (1989).5 The legislature also added 30-63b(e), which provides that
nothing in 30-63b prohibits out-of-state shippers from changing their out-ofstate prices after the affirmed Connecticut price is posted.6 The legislature,
however, did not amend 30-63a(b), which continued to make it unlawful for
out-of-state shippers to sell beer in Connecticut at a price higher than the price
at which beer is or would be sold in any bordering State during the month
covered by the posting.7

In the wake of the 1984 amendments, appellees (a brewers' trade association

and major producers and importers of beer) filed suit in the United States
District Court for the District of Connecticut, seeking declaratory and
injunctive relief and claiming that the effect of the amended law was not
different from that of the law struck down in Healy I.8 See United States
Brewers Assn. v. Healy, 669 F.Supp. 543, 544-545 (1987). In response to
appellees' complaint, Connecticut filed a "Declaratory Ruling" by the
Department of Liquor Control, interpreting the statute as amended as requiring
out-of-state shippers to affirm that their posted prices in Connecticut were no
higher than their lowest prices in any border State only at the time of posting
the sixth day of each month. Id., at 547, and n. 9. After the moment of posting,

the ruling stated, the statute imposes no restrictions on the right of out-of-state
shippers to raise or lower their border-state prices at will. Ibid.
6

Appellees argued, however, that the Connecticut beer-affirmation statute, even

as modified by the declaratory ruling, regulated out-of-state transactions,
constituted economic protectionism, and unduly burdened interstate commerce,
all in violation of the Commerce Clause. On cross-motions for summary
judgment, the District Court upheld the statute as modified by the legislature
and construed in the Department of Liquor Control's declaratory ruling, resting
its decision on Seagram, supra, and distinguishing this Court's subsequent
decision in Brown-Forman Distillers Corp. v. New York State Liquor Authority,
476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986), which struck down a
statute analogous to Connecticut's 1981 beer-affirmation statute. The District
Court found the 1984 Connecticut law constitutional on its face because,
"unlike the version in Healy I and Brown-Forman," the 1984 law "leaves
brewers free to raise or lower prices in the border states before and after posting
in Connecticut and does not, therefore, regulate interstate commerce." 669
F.Supp., at 553.

As in Healy I, the Court of Appeals reversed. It held that the 1984 law (even as
interpreted by the declaratory ruling), like its predecessor, violated the
Commerce Clause by controlling the prices at which out-of-state shippers could
sell beer in other States. First, and foremost, the court held that the Connecticut
statute's "purposeful interaction with border-state regulatory schemes" means
that shippers cannot, as a practical matter, set prices based on market conditions
in a border State without factoring in the effects of those prices on its future
Connecticut pricing options. In re Beer Institute, 849 F.2d 753, 760-761 (CA2
1988) (Healy II ). Second, the Court of Appeals found that the 1984 statute
unconstitutionally restricted the ability of out-of-state shippers to offer volume
discounts in the border States. Id., at 760. Furthermore, relying on BrownForman, supra, the court rejected appellants' argument that the statute was a
proper exercise of its regulatory authority under the Twenty-first Amendment.
849 F.2d, at 761.

We noted probable jurisdiction. 488 U.S. 954, 109 S.Ct. 389, 102 L.Ed.2d 378
(1988).

II
9

In deciding this appeal, we engage in our fourth expedition into the area of
price-affirmation statutes. The Court first explored this territory in Seagram,
where it upheld against numerous constitutional challenges a New York statute

that required liquor-label owners or their agents to affirm that " 'the bottle and
case price of liquor . . . is no higher than the lowest price' " at which such
liquor was sold "anywhere in the United States during the preceding month."
384 U.S., at 39-40, 86 S.Ct., at 1257-1258, quoting the New York law. The
Court ruled that the mere fact that the New York statute was geared to
appellants' pricing policies in other States did not violate the Commerce Clause,
because under the Twenty-first Amendment's broad grant of liquor regulatory
authority to the States, New York could insist that liquor prices offered to
domestic wholesalers and retailers "be as low as prices offered elsewhere in the
country." Id., at 43, 86 S.Ct., at 1260. Although the appellant brand owners in
Seagram had alleged that the New York law created serious discriminatory
effects on their business outside New York, the Court considered these injuries
too conjectural to support a facial challenge to the statute and suggested that the
purported extraterritorial effects could be assessed in a case where they were
clearly presented. Ibid.
10

Eighteen years after Seagram, we summarily affirmed the Second Circuit's

judgment in Healy I, and then, another two years later, granted plenary review
in Brown-Forman, supra. The New York law at issue in Brown-Forman
required every liquor distiller or producer selling to wholesalers within the
State to affirm that the prices charged for every bottle or case of liquor were no
higher than the lowest price at which the same product would be sold in any
other State during the month covered by the particular affirmation. 476 U.S., at
576, 106 S.Ct., at 2083. Appellant Brown-Forman was a liquor distiller that
offered "promotional allowances" to wholesalers purchasing Brown-Forman
products. The New York Liquor Authority, however, did not allow BrownForman to operate its rebate scheme in New York and, moreover, determined
for the purposes of the affirmation law that the promotional allowances
lowered the effective price charged to wholesalers outside New York. Because
other States with affirmation laws similar to New York's did not deem the
promotional allowances to lower the price charged to wholesalers, appellant
argued that the New York law offered the company the Hobson's choice of
lowering its New York prices, thereby violating the affirmation laws of other
States, or of discontinuing the promotional allowances altogether. This,
appellant alleged, amounted to extraterritorial regulation of interstate commerce
in violation of the Commerce Clause. Id., at 579-582, 106 S.Ct., at 2084-2086.

11

This Court agreed, reaffirming and elaborating on our established view that a
state law that has the "practical effect" of regulating commerce occurring
wholly outside that State's borders is invalid under the Commerce Clause. We
began by reviewing past decisions, starting with Baldwin v. G.A.F. Seelig, Inc.,
294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935). The Court in Seelig struck

down a New York statute that set minimum prices for milk purchased from
producers in New York and other States and banned the resale within New
York of milk that had been purchased for a lower price. Because Vermont dairy
farmers produced milk at a lower cost than New York dairy farmers, the effect
of the statute was to eliminate the competitive economic advantage they
enjoyed by equalizing the price of milk from all sources. Writing for the Court,
Justice Cardozo pronounced that the Commerce Clause does not permit a State
"to establish a wage scale or a scale of prices for use in other states, and to bar
the sale of the products . . . unless the scale has been observed." Id., at 528, 55
S.Ct., at 503. Relying on Seelig, the Court in Brown-Forman concluded:
"While a State may seek lower prices for its consumers, it may not insist that
producers or consumers in other States surrender whatever competitive
advantages they may possess." 476 U.S., at 580, 106 S.Ct., at 2085; see also
Schwegmann Brothers Giant Super Markets v. Louisiana Milk Comm'n, 365
F.Supp. 1144, 1152-1156 (MD La.1973), summarily aff'd, 416 U.S. 922, 94
S.Ct. 1920, 40 L.Ed.2d 279 (1974). After drawing upon Seelig, the BrownForman Court also discussed Healy I with approval. There, as we have noted,
the Court of Appeals struck down an earlier version of Connecticut's priceaffirmation statute, which was essentially identical to the one at issue in BrownForman, because the statute "made it impossible for a brewer to lower its price
in a bordering State in response to market conditions so long as it had a higher
posted price in effect in Connecticut." 476 U.S., at 581-582, 106 S.Ct., at 20852086.9
12

Applying these principles, we concluded that the New York statute had an
impermissible extraterritorial effect: "Once a distiller has posted pr ces in New
York, it is not free to change its prices elsewhere in the United States during the
relevant month. Forcing a merchant to seek regulatory approval in one State
before undertaking a transaction in another directly regulates interstate
commerce." Id., at 582, 106 S.Ct., at 2086 (footnote omitted). Although New
York might regulate the sale of liquor within its borders, and might seek low
prices for its residents, it was prohibited by the Commerce Clause from "
'project[ing] its legislation into [other States] by regulating the price to be paid'
" for liquor in those States. Id., at 583, 106 S.Ct., at 2086, quoting Seelig, 294
U.S., at 521, 55 S.Ct., at 499. Despite the language in Seagram, the Court did
not find the prospect of these extraterritorial effects to be speculative. The
majority rejected as "Pollyannaish" the dissent's suggestion that flexible
application by the relevant administrative bodies would obviate the problem
and noted that the proliferation of affirmation laws after Seagram had greatly
multiplied the likelihood that distillers would be subject to blatantly
inconsistent obligations.10

13

The Court squarely rejected New York's argument that the Twenty-first
Amendment, which bans the importation or possession of intoxicating liquors
into a State "in violation of the laws thereof," saved the statute from
invalidation under the Commerce Clause. Although the Court acknowledged
that the Amendment vested in New York considerable authority to regulate the
domestic sale of alcohol, the Amendment did not immunize the State from the
Commerce Clause's proscription of state statutes that regulate the sale of
alcohol in other States. 476 U.S., at 585, 106 S.Ct., at 2088. Accordingly, the
Court's conclusion that the New York law regulated out-of-state sales
conclusively resolved the Twenty-first Amendment issue against New York.
Ibid.

14

The Court acknowledged that its Brown-Forman decision was in considerable

tension with Seagram. The statutes at issue in the two cases were, it observed,
factually distinguishable: the Seagram statute was retrospective, tying New
York prices to out-of-state prices charged during the previous month, while the
Brown-Forman statute was prospective, mandating that New York prices could
be no higher than out-of-state prices for the following month. But the Court
explicitly refused to give this retrospective/prospective distinction any
constitutional significance, and even suggested that the effects of the two
statutes might well be the same for the purposes of constitutional analysis.
Nonetheless, since the Court was not squarely presented with a retrospective
statute, it declined to evaluate Seagram's continued validity. 476 U.S., at 584, n.
6, 106 S.Ct., at 2087, n. 6. 11

III
15

In light of this history, we now must assess the constitutionality of the

Connecticut statute, which is neither prospective nor retrospective, but rather
"contemporaneous." As explained above, the statute requires only that out-ofstate shippers affirm that their prices are no higher than the prices being
charged in the border States as of the moment of affirmation.

16

The principles guiding this assessment, principles made lear in Brown-Forman

and in the cases upon which it relied, reflect the Constitution's special concern
both with the maintenance of a national economic union unfettered by stateimposed limitations on interstate commerce12 and with the autonomy of the
individual States within their respective spheres.13 Taken together, our cases
concerning the extraterritorial effects of state economic regulation stand at a
minimum for the following propositions: First, the "Commerce Clause . . .
precludes the application of a state statute to commerce that takes place wholly
outside of the State's borders, whether or not the commerce has effects within

the State," Edgar v. MITE Corp., 457 U.S. 624, 642-643, 102 S.Ct. 2629, 26402641, 73 L.Ed.2d 269 (1982) (plurality opinion); see also Brown-Forman, 476
U.S., at 581-583, 106 S.Ct., at 2085-2087; and, specifically, a State may not
adopt legislation that has the practical effect of establishing "a scale of prices
for use in other states," Seelig, 294 U.S., at 528, 55 S.Ct., at 502. Second, a
statute that directly controls commerce occurring wholly outside the boundaries
of a State exceeds the inherent limits of the enacting State's authority and is
invalid regardless of whether the statute's extraterritorial reach was intended by
the legislature. The critical inquiry is whether the practical effect of the
regulation is to control conduct beyond the boundaries of the State. BrownForman, 476 U.S., at 579, 106 S.Ct., at 2084. Third, the practical effect of the
statute must be evaluated not only by considering the consequences of the
statute itself, but also by considering how the challenged statute may interact
with the legitimate regulatory regimes of other States and what effect would
arise if not one, but many or every, State adopted similar legislation. Generally
speaking, the Commerce Clause protects against inconsistent legislation arising
from the projection of one state regulatory regime into the jurisdiction of
another State. Cf. CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 8889, 107 S.Ct. 1637, 1649-1650, 95 L.Ed.2d 67 (1987). And, specifically, the
Commerce Clause dictates that no State may force an out-of-state merchant to
seek regulatory approval in one State before undertaking a transaction in
another. Brown-Forman, 476 U.S., at 582, 106 S.Ct., at 2086. 14
17

When these principles are applied to Connecticut's contemporaneous priceaffirmation statute, the result is clear. The Court of Appeals correctly
concluded that the Connecticut statute has the undeniable effect of controlling
commercial activity occurring wholly outside the boundary of the State.
Moreover, the practical effect of this affirmation law, in conjunction with the
many other beer-pricing and affirmation laws that have been or might be
enacted throughout the country, is to create just the kind of competing and
interlocking local economic regulation that the Commerce Clause was meant to
preclude.

18

First, as explained by the Court of Appeals, the interaction of the Connecticut

affirmation statute with the Massachusetts beer-pricing statute (which does not
link domestic prices with out-of-state prices) has the practical effect of
controlling Massachusetts prices. See 849 F.2d, at 759. Massachusetts requires
brewers to post their prices on the first day of the month to become effective on
the first day of the following month. See Mass.Gen.Laws 138:25B (1986).
Five days later, however, those same brewers, in order to sell beer in
Connecticut, must affirm that their Connecticut prices for the following month
will be no higher than the lowest price that they are charging in any border

State. Accordingly, on January 1, when a brewer posts his February prices for
Massachusetts, that brewer must take account of the price he hopes to charge in
Connecticut during the month of March. Not only will the January posting in
Massachusetts establish a ceiling price for the brewer's March prices in
Connecticut, but also, under the requirements of the Massachusetts law, the
brewer will be locked into his Massachusetts price for the entire month of
February (absent administrative leave) even though the Connecticut posting
will have occurred on February 6. Thus, as a practical matter, Connecticut's
nominally "contemporaneous" affirmation statute "prospectively" precludes the
alteration of out-of-state prices after the moment of affirmation. More
generally, the end result of the Connecticut statute's incorporation of out-ofstate prices, as the Court of Appeals concluded, is that "[a] brewer can . . .
undertake competitive pricing based on the market realities of either
Massachusetts or Connecticut, but not both, because the Connecticut statute ties
pricing to the regulatory schemes of the border states." 849 F.2d, at 759. In
other words, the Connecticut statute has the extraterritorial effect, condemned
in Brown-Forman, of preventing brewers from undertaking competitive pricing
in Massachusetts based on prevailing market conditions.
19

Second, because New York law requires that promotional discounts remain in
effect for 180 days, see N.Y.Alco.Bev.Cont.Law 55-b(2) (McKinney 1987),
and the Connecticut statute treats promotional discounts as a reduction in price,
the interaction of the New York and Connecticut laws is such that brewers may
offer promotional discounts in New York only at the cost of locking in their
discounted New York price as the ceiling for their Connecticut prices for the
full 180 days of the New York promotional discount.

20

Third, because volume discounts are permitted in Massachusetts, New York,

and Rhode Island, but not in Connecticut, the effect of Connecticut's affirmation
scheme is to deter volume discounts in each of these other States, because the
lowest of the volume-discounted prices would have to be offered as the regular
price for an entire month in Connecticut. See 849 F.2d, at 760.

21

With respect to both promotional and volume discounts, then, the effect of the
Connecticut statute is essentially indist nguishable from the extraterritorial
effect found unconstitutional in Brown-Forman. The Connecticut statute, like
the New York law struck down in Brown-Forman, requires out-of-state
shippers to forgo the implementation of competitive-pricing schemes in out-ofstate markets because those pricing decisions are imported by statute into the
Connecticut market regardless of local competitive conditions. As we
specifically reaffirmed in Brown-Forman, States may not deprive businesses
and consumers in other States of "whatever competitive advantages they may

possess" based on the conditions of the local market. 476 U.S., at 580, 106
S.Ct., at 2085. The Connecticut statute does precisely this.
22

The Commerce Clause problem with the Connecticut statute appears in even
starker relief when it is recalled that if Connecticut may enact a
contemporaneous affirmation statute, so may each of the border States and,
indeed, so may every other State in the Nation. Suppose, for example, that the
border States each enacted statutes essentially identical to Connecticut's. Under
those circumstances, in January, when a brewer posts his February prices in
Connecticut and the border States, he must determine those prices knowing that
the lowest bottle, can, or case price in any State would become the maximum
bottle, can, or case price the brewer would be permitted to charge throughout
the region for the month of March. This is true because in February, when the
brewer posts his March prices in each State, he will have to affirm that no
bottle, can, or case price is higher than the lowest bottle, can, or case price in
the regionand these "current" prices would have been determined by the
January posting. Put differently, unless a beer supplier declined to sell in one of
the States for an entire month, the maximum price in each State would be
capped by previous prices in the other States. This maximum price would
almost surely be the minimum price as well, since any reduction in either State
would permanently lower the ceiling in both. Nor would such "price gridlock"
be limited to individual regions. The short-circuiting of normal pricing
decisions based on local conditions would be carried to a national scale if a
significant group of States enacted contemporaneous affirmation statutes that
linked in-state prices to the lowest price in any State in the country. This kind of
potential regional and even national regulation of the pricing mechanism for
goods is reserved by the Commerce Clause to the Federal Government and may
not be accomplished piecemeal through the extraterritorial reach of individual
state statutes.

IV
23

The Connecticut statute, moreover, violates the Commerce Clause in a second

respect: On its face, the statute discriminates against brewers and shippers of
beer engaged in interstate commerce. In its previous decisions, this Court has
followed a consistent practice of striking down state statutes that clearly
discriminate against interstate commerce, see, e.g., New Energy Co. of Indiana
v. Limbach, 486 U.S. 269, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988); Sporhase
v. Nebraska ex rel. Douglas, 458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254
(1982); Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64
L.Ed.2d 702 (1980), unless that discrimination is demonstrably justified by a
valid factor unrelated to economic protectionism, see, e.g., Maine v. Taylor, 477

U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). By its plain terms, the
Connecticut affirmation statute applies solely to interstate brewers or shippers
of beer, that is, either Connecticut brewers who sell both in Connecticut and in
at least one border State or out-of-state shippers who sell both in Connecticut
and in at least one border State. Under the statute, a manufacturer or shipper of
beer is free to charge wholesalers within Connecticut whatever price it might
choose so long as that manufacturer or shipper does not sell its beer in a border
Stat . This discriminatory treatment establishes a substantial disincentive for
companies doing business in Connecticut to engage in interstate commerce,
essentially penalizing Connecticut brewers if they seek border-state markets
and out-of-state shippers if they choose to sell both in Connecticut and in a
border State. We perceive no neutral justification for this patent discrimination.
Connecticut has claimed throughout this litigation that its price-affirmation
laws are designed to ensure the lowest possible prices for Connecticut
consumers. While this may be a legitimate justification for the statute, it is not
advanced by, in effect, exempting brewers and shippers engaging in solely
domestic sales from the price regulations imposed on brewers and shippers who
engage in sales throughout the region.
V
A.
24

Appellants advance two basic arguments in defense of Connecticut's statute:

first, that the Twenty-first Amendment sanctions Connecticut's affirmation
statute regardless of its effect on interstate commerce; and, second, that the
statute is constitutional under this Court's analysis in Joseph E. Seagram &
Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336 (1966), in
which the Court stated that a retrospective affirmation statute does not violate
the Commerce Clause merely because it is geared to prices in other States.
Appellants' reliance on the Twenty-first Amendment is foreclosed by BrownForman, where we explicitly rejected an identical argument. In Brown-Forman,
the Court specifically held that the Twenty-first Amendment does not
immunize state laws from invalidation under the Commerce Clause when those
laws have the practical effect of regulating liquor sales in other States. 476 U.S.,
at 585, 106 S.Ct., at 2087. Here, as in Brown-Forman, our finding of
unconstitutional extraterritorial effects disposes of the Twenty-first Amendment
issue. Appellants' reliance on Seagram is similarly foreclosed by BrownForman. While our decision in Brown-Forman did not overrule Seagram, it
strictly limited the scope of that decision to retrospective affirmation statutes.

25

More important, Brown-Forman removed the legal underpinnings of Seagram's

Commerce Clause analysis. 476 U.S., at 581-584, and n. 6, 106 S.Ct., at 20852087, and n. 6. Seagram rested on the following reasoning: the Twenty-first
Amendment gives States wide latitude in the field of liquor regulation; although
such state regulation might violate the Commerce Clause in some extreme
instances, in particular where a State's regulations controlled liquor commerce
outside the State's boundaries, the extraterritorial effects of New York's
retrospective affirmation statute were too conjectural to support such a claim.
384 U.S., at 42-43, 86 S.Ct., at 1259-1260. Brown-Forman, however, holds
unequivocally that to the extent that an affirmation statute has the practical
effect of regulating out-of-state liquor prices, it cannot stand under the
Commerce Clause irrespective of the Twenty-first Amendment. 476 U.S., at
585, 106 S.Ct., at 2087. In striking down the statute at issue, the Court in
Brown-Forman found, in light of 20 years of experience with the affirmation
laws that proliferated after Seagram, that prospective affirmation statutes have
such extraterritorial effects. Indeed, Brown-Forman leaves Seagram intact only
to the extent that the Court in the former case felt no compulsion, in a case not
directly raising the question, to address whether retrospective affirmation
shared the extraterritorial effects of prospective affirmation laws. 476 U.S., at
584, n. 6, 106 S.Ct., at 2087, n. 6.

26

In the interest of removing any lingering uncertainty about the constitutional

validity of affirmation statutes and of avoiding further litigation on the subject
of liquor-price affirmation, we recognize today what was all but determined in
Brown-Forman: to the extent that Seagram holds that retrospective af irmation
statutes do not facially violate the Commerce Clause, it is no longer good law.
Retrospective affirmation statutes, like other affirmation statutes, have the
inherent practical extraterritorial effect of regulating liquor prices in other
States. By tying maximum future prices in one State to the lowest prices in
other States as determined at a specified time in the past, retrospective
affirmation laws control pricing decisions in nonaffirmation States by requiring
that those decisions reflect not only local market conditions, but also market
conditions in the affirmation Statesmarket conditions that would be irrelevant
absent the binding force of the affirmation statutes. Every pricing decision
made in a nonaffirmation State will reflect the certain knowledge that the price
chosen will become in the future the maximum permissible price in the States
requiring affirmation. 15 For the reasons noted today and in Brown-Forman, this
extraterritorial effect violates the Commerce Clause.

27

The judgment of the Court of Appeals is affirmed.

28

It is so ordered. Justice SCALIA, concurring in part and concurring in the

28

It is so ordered. Justice SCALIA, concurring in part and concurring in the

judgment.

29

I join the Court's disposition of this suit and Parts I and IV of its opinion. The
Connecticut statute's invalidity is fully established by its facial discrimination
against interstate commercethrough imposition of price restrictions
exclusively upon those who sell beer not only in Connecticut but also in the
surrounding Statesand by Connecticut's inability to establish that the law's
asserted goal of lower consumer prices cannot be achieved in a
nondiscriminatory manner.* See New Energy Co. of Indiana v. Limbach, 486
U.S. 269, 276-277, 279-280, 108 S.Ct. 1803, 1808-1810, 1811, 100 L.Ed.2d
302 (1988). This is so despite the fact that the law regulates the sale of
alcoholic beverages, since its discriminatory character eliminates the immunity
afforded by the Twenty-first Amendment. See Bacchus Imports, Ltd. v. Dias,
468 U.S. 263, 275-276, 104 S.Ct. 3049, 3057-3058, 82 L.Ed.2d 200 (1984).
Since Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254,
16 L.Ed.2d 336 (1966), upheld a law that operated in like fashion, I agree with
the Court that today's decision requires us to overrule that case. See ante, at
343.

30

I would refrain, however, from applying the more expansive analysis which
finds the law unconstitutional because it regulates or controls beer pricing in
the surrounding States. See ante, at 335-340. It seems to me this rationale is not
only unnecessary but also questionable, resting as it does upon the mere
economic reality that the challenged law will require sellers in New York,
Massachusetts, and Rhode Island to take account of the price that they must
post and charge in Connecticut when setting their prices in those other States.
The difficulty with this is that innumerable valid state laws affect pricing
decisions in other Stateseven so rudimentary a law as a maximum price
regulation. Suppose, for example, that the Connecticut Legislature had simply
provided that beer could not be retailed in Connecticut above $10 a case.
Sellers in those portions of New York, Massachusetts, and Rhode Island
bordering Connecticut would have to take account of that requirement, just as
sellers in those States had to take account of the Connecticut posting
requirement here, because prices substantially above the maximum would
cause their former in-state purchasers to drive to Connecticut and their former
Connecticut purchasers to stay home. The out-of-state impact in this particular
example would not be as severe as that in the present cases, but I do not think
our Commerce Clause jurisprudence should degenerate into disputes over
degree of economic effect. In any case, since this principle is both dubious and
unnecessary to decide the present cases, I decline to endorse it.

31

Chief Justice REHNQUIST, with whom Justice STEVENS and Justice

O'CONNOR join, dissenting.

32

In Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032
(1935), the Court held that a New York statute setting maximum prices for
milk sold in that State violated the Commerce Clause when applied to milk
produced more cheaply in Vermont but imported into New York for sale.
Today the Court applies the doctrine of that case to invalidate a Connecticut
statute which sets a maximum price for beer imported into Connecticut from
other States. The Court's analysis seems wrong to me both as a matter of
economics and as a matter of law: the maximum prices set by Connecticut in
this case have a quite different effect than did the minimum prices set by New
York in the Baldwin case, and by reason of the Twenty-first Amendment the
States possess greater authority to regulate commerce in beer than they do
commerce in milk.

33

The New York statute passed upon in Baldwin provided that no milk could be
sold in the New York City metropolitan area unless it had been purchased from
the producer for a price at least equal to the minimum specified by law. When
this statute was applied to milk produced in Vermont but brought into the New
York City metropolitan area for sale, the result was to require Vermont
producers to give up the natural advantage which they would otherwise have
obtained from the fact that the costs of production of milk in Vermont were
lower than the costs of production in New York. The Court rightly held that this
sort of a regulation violated the Commerce Clause because it "set a barrier to
traffic between one state and another as effective as if customs duties, equal to
the price differential, had been laid upon the thing transported." Id., 294 U.S., at
521, 55 S.Ct., at 500. In Milk Control Board v. Eisenberg Farm Products, 306
U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752 (1939), decided four years after Baldwin,
the Court upheld a different state milk price regulation, and in so doing
distinguished Baldwin as a case in which "this Court condemned an enactment
aimed solely at interstate commerce attempting to affect and regulate the price
to be paid for milk in a sister state." 306 U.S., at 353, 59 S.Ct., at 531.

34

The Connecticut atute here is markedly different from the New York statute
condemned in Baldwin. Connecticut has no motive to favor local brewers over
out-of-state brewers, because there are no local brewers. Ante, at 327, n. 2. Its
motive unchallenged hereis to obtain from out-of-state brewers prices for
Connecticut retailers and Connecticut beer drinkers as low as those charged by
the brewers in neighboring States. Connecticut does not seek to erect any sort of
tariff barrier to exclude out-of-state beer; its residents will drink out-of-state
beer if they drink beer at all, and the State simply wishes its inhabitants to be
treated as favorably as those of neighboring States by the brewers who sell

interstate. There is no "tariff wall" between Connecticut and other States; there
is only a maximum price regulation with which the interstate brewer would
rather not have to bother. But that is not a sufficient reason for saying that such
a regulation violates the Commerce Clause.
35

Neither the parties nor the Court points to any concrete evidence that the
Connecticut regulation will have any effect on the beer prices charged in other
States, much less a constitutionally impermissible one. It is merely assumed
that consumers in the neighboring States possess "competitive advantages" over
Connecticut consumers. Ante, at 339. But it is equally possible that
Connecticut's affirmation laws, a response to a history of unusually high beer
prices in that State, see United States Brewers Assn., Inc. v. Healy, 692 F.2d
275, 276 (1982), may be justifiable as a remedy for some market imperfection
that permits supracompetitive prices to be charged Connecticut consumers. The
Court expresses the view that these regulations will affect the prices of beer in
other States and goes on to say that such an effect constitutes "regulating" or
"controlling" beer sales beyond its borders. Ante, at 337, 342. But this view is
simply the Court's personal forecast about the business strategies that
distributors may use to set their prices in light of regulatory obligations in
various States. Certainly a distributor that considers the Connecticut affirmation
law when setting its prices in Massachusetts, or offering a discount in New
York, is under no legal obligation to do so. And it is quite arbitrary, and
inconsistent with other Commerce Clause doctrine, to strike down
Connecticut's affirmation law because together with the laws of neighboring
States it might require a brewer to plan its pricing somewhat farther in advance,
ante, at 337-338, than it would prefer to do in a totally unregulated economy.

36

"[T]he question is not whether what [the State] has done will restrict appellants'
freedom of action outside [the State] by subjecting the exercise of such freedom
to financial burdens. The mere fact that state action may have repercussions
beyond state lines is of no judicial significance so long as the action is not
within that domain which the Constitution forbids." Osborn v. Ozlin, 310 U.S.
53, 62, 60 S.Ct. 758, 761, 84 L.Ed. 1074 (1940). See also Joseph E. Seagram &
Sons, Inc. v. Hostetter, 384 U.S. 35, 43, 86 S.Ct. 1254, 1260, 16 L.Ed.2d 336
(1966).

37

I am no more convinced by the Court's alternative rationale, that the

Connecticut statute "facially discriminates" against brewers and shippers of
beer engaged in interstate commerce in favor of brewers and shippers who do
business wholly within the Connecticut. Ante, at 340. As the Court
acknowledges, there are no Connecticut brewers, ante, at 327, n. 2, and the
Court has not pointed to any evidence of shippers doing business in Connecticut

but not in its border States. Consequently, the Court strikes down Connecticut's
statute because it facially discriminates in favor of entities that apparently do
not exist. But cf. Amerada Hess Corp. v. Director, New Jersey Division of
Taxation, 490 U.S. 66, 77-78, 109 S.Ct. 1617, 1623-1624, 104 L.Ed.2d 58
(1989) (absence of oil reserves in New Jersey allays concern about a
discriminatory motive or effect of a state tax disallowance of a deduction related
to oil production). We do not know what actions Connecticut might take to
eliminate discriminatory effects if a local brewer began business and a true
danger of discrimination in favor of local business appeared. It is not a proper
exercise of our constitutional power to invalidate state legislation as facially
discriminatory just because it has not taken into account every hypothetical
circumstance that might develop in the market.
38

All of the foregoing is based on the assumption that a State has no more
freedom to regulate commerce in beer than it does commerce in milk or any
other commodity. But the Twenty-first Amendment, as the Court concedes, at
least in theory, provides otherwise: "The transportation or importation into any
State . . . for delivery or use therein of intoxicating liquors, in violation of the
laws thereof, is hereby prohibited."

39

Less than 10 years ago we acknowledged that the Twenty-first Amendment

confers on the States "virtually complete control over whether to permit
importation or sale of liquor and how to structure the liquor distribution
system." California Retail Liquor Dealers Association v. Midcal Aluminum,
Inc., 445 U.S. 97, 110, 100 S.Ct. 937, 940, 63 L.Ed.2d 233 (1980). And while
this "special power" of the States to regulate liquor, id., at 108, 100 S.Ct., at
944, must coexist with Congress' power to regulate commerce, "[t]his Court's
decisions . . . have confirmed that the Amendment primarily created an
exception to the normal operation of the Commerce Clause." Craig v. Boren,
429 U.S. 190, 206, 97 S.Ct. 451, 461, 50 L.Ed.2d 397 (1976). The Court in the
present cases barely pays lipservice to the additional authority of the States to
regulate commerce and alcoholic beverages granted by the Twenty-first
Amendment. Neglecting to consider that increased authority is especially
disturbing here where the perceived proscriptive force of the Commerce Clause
does not flow from an affirmative legislative decision and so is at its nadir.
Even the most restrictive view of the Twenty-first Amendment should validate
Connecticut's efforts to obtain from interstate brewers prices for its beer
drinkers which are as favorable as the prices which those brewers charge in
neighboring States.

40

The result reached by the Court in these cases can only be described as
perverse. A proper view of the Twenty-first Amendment would require that

States have greater latitude under the Commerce Clause to regulate producers
of alcoholic beverages than they do producers of milk. But the Court extends to
beer producers a degree of Commerce Clause protection that our cases have
never extended to milk producers. I would reverse the judgment of the Court of
Appeals.

The Commerce Clause states: "The Congress shall have Power . . . To regulate
Commerce . . . among the several States. . . ." U.S. Const., Art. I, 8, cl. 3. This
Court long has recognized that this affirmative grant of authority to Congress
also encompasses an implicit or "dormant" limitation on the authority of the
States to enact legislation affecting interstate commerce. See, e.g., Hughes v.
Oklahoma, 441 U.S. 322, 326, and n. 2, 99 S.Ct. 1727, 1731, and n. 2, 60
L.Ed.2d 250 (1979); H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534535, 69 S.Ct. 657, 663-664, 93 L.Ed. 865 (1949).

The Connecticut beer industry is divided into three marketing levels: (1)
brewers and importers, (2) wholesalers, and (3) retailers. Participants in each
tier of the industry must obtain a license to sell to the tier below, with the
retailers selling to the consuming public. While generally each wholesaler
carries the products of more than one brewer or importer (because Connecticut
currently has no brewery of its own, brewers and importers are referred to
collectively as "out-of-state shippers"), wholesalers may resell these products
only to retailers within the geographic area specified in their respective
licenses. United States Brewers Assn. v. Healy, 669 F.Supp. 543, 545-546
(Conn.1987); United States Brewers Assn., Inc. v. Healy, 532 F.Supp. 1312,
1317 (Conn.1982).

The affirmation statute did permit differentials in price based on differing state
taxes and transportation costs. Conn.Gen.Stat. 30-63c(b) (1989).

The statute also required out-of-state shippers to offer Connecticut wholesalers

every package configuration for each brand of beer offered to wholesalers in the
border States. 30-63c(b), quoted in 532 F.Supp., at 1314, n. 4.

As amended by 1984 Conn.Pub. Acts 332, 30-63b(b) provides:

"At the time of posting of the bottle, can, keg or barrel and case price required
by section 30-63, every holder of a manufacturer or out-of-state shipper's
permit, or the authorized representative of a manufacturer, shall file with the
department of liquor control a written affirmation under oath by the
manufacturer or out-of-state shipper of each brand of beer posted certifying
that, at the time of posting, the bottle, can or case price, or price per keg, barrel

or fractional unit thereof, to the wholesaler permittees is no higher than the

lowest price at which each such item of beer is sold, offered for sale, shipped,
transported or delivered by such manufacturer or out-of-state shipper to any
wholesaler in any state bordering this state."
In addition, Connecticut regulations now provide for posting on the sixth day of
each month. App. 157.
6

As added by 1984 Conn.Pub. Acts 332, 30-63b(e) provides:

"This section shall not prohibit a manufacturer or out-of-state shipper permittee
or the authorized representative of a manufacturer from changing prices to any
wholesaler in any other state of the United States or in the District of Columbia,
or to any state or agency of a state which owns and operates retail liquor outlets
at any time during the calendar month covered by such posting."

Conn.Gen.Stat. 30-63a(b) provides in relevant part:

"No holder of any manufacturer or out-of-state shipper's permit shall ship,
transport or deliver within this state, or sell or offer for sale to a wholesaler
permittee any brand of beer . . . at a bottle, can or case price, or price per keg,
barrel or fractional unit thereof, higher than the lowest price at which such item
is then being sold or offered for sale or shipped, transported or delivered by
such manufacturer or out-of-state shipper to any wholesaler in any state
bordering this state."

Appellants are the Connecticut officials responsible for enforcing the

affirmation statute, and the liquor-wholesalers trade association which entered
the case as an intervenor.

The Brown-Forman Court cited a third extraterritorial decision, Edgar v. MITE

Corp., 457 U.S. 624, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982), which, though not
discussed at length there, significantly illuminates the contours of the
constitutional prohibition on extraterritorial legislation. In MITE Corp., the
Court struck down the Illinois Business Takeover Act, which required that a
takeover offer for a target company having a specified connection to Illinois be
registered with the Secretary of State and mandated that such an offer was not
to become effective for 20 days, during which time the offer would be subject
to administrative evaluation. The statute empowered the Secretary of State to
deny registration of the tender offer under certain conditions, such as inequity
or fraud. A plurality found the statute to be infirm under the Commerce Clause
because it "directly regulates transactions which take place across state lines,
even if wholly outside the State of Illinois." Id., at 641, 102 S.Ct., at 2640. The
plurality observed that, if the target company had sufficient in-state contacts,

the Illinois law, unless complied with, could prevent interstate-securities

transactions in stock even if not a single one of the target company's
shareholders was a resident of Illinois. Moreover, the plurality noted that if
Illinois were free to enact such legislation, others States similarly were so
empowered, "and interstate commerce in securities transactions generated by
tender offers would be thoroughly stifled." Id., at 642, 102 S.Ct., at 2641.
Under the Commerce Clause the projection of these extraterritorial " 'practical
effect[s],' " regardless of the statute's intention, " 'exceed[ed] the inherent limits
of the State's power.' " Id., at 642-643, 102 S.Ct., at 2640-2641, quoting Shaffer
v. Heitner, 433 U.S. 186, 197, 97 S.Ct. 2569, 2576, 53 L.Ed.2d 683 (1977).
10

At the time of our decision in Brown-Forman, 39 States, including New York,

had adopted affirmation laws. Of these, 18, known as "control" States, each
purchased all liquor to be distributed and consumed within its borders. These
States subscribed to a standard sales contract that required distillers to guarantee
that the price charged the State was no higher than the lowest price offered
anywhere in the United States. Twenty States had adopted statutes similar to
the New York statute that was under challenge. See 476 U.S., at 576, and n. 1,
106 S.Ct., at 2082-2083, and n. 1.

11

One Member of the Court concurred separately to advocate that Seagram then
be overruled as a "relic of the past." Id., at 586, 106 S.Ct., at 2088.

12

The entire Constitution was "framed upon the theory that the peoples of the
several states must sink or swim together, and that in the long run prosperity
and salvation are in union and not division." Baldwin v. G.A.F. Seelig, Inc., 294
U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935).

13

The plurality in Edgar v. MITE Corp., noted: "The limits on a State's power to
enact substantive legislation are similar to the limits on the jurisdiction of state
courts. In either case, 'any attempt "directly" to assert extraterritorial
jurisdiction over persons or property would offend sister States and exceed the
inherent limits of the State's power.' " 457 U.S., at 643, 102 S.Ct., at 2641,
quoting Shaffer v. Heitner, 433 U.S., at 197, 97 S.Ct., at 2576.

14

As a general matter, the Court has adopted a two-tiered approach to analyzing

state economic regulation under the Commerce Clause. We summarized in
Brown-Forman:
"When a state statute directly regulates or discriminates against interstate
commerce, or when its effect is to favor in-state economic interests over out-ofstate interests, we have generally struck down the statute without further
inquiry. When, however, a statute has only indirect effects on interstate
commerce and regulates evenhandedly, we have examined whether the State's

interest is legitimate and whether the burden on interstate commerce clearly

exceeds the local benefits." 476 U.S., at 579, 106 S.Ct., at 2084 (citations
omitted).
We further recognized in Brown-Forman that the critical consideration in
determining whether the extraterritori l reach of a statute violates the
Commerce Clause is the overall effect of the statute on both local and interstate
commerce. Ibid. Our distillation of principles from prior cases involving
extraterritoriality is meant as nothing more than a restatement of those specific
concerns that have shaped this inquiry.
15

Recent economic scholarship confirms:

"[B]oth [prospective and retrospective] types of price affirmation burden
interstate commerce because they both cause firms to consider jointly their
demand and marginal cost curves in more than one state. Accordingly, the
impact of an affirmation law adopted by one state will be transmitted to other
states, affecting prices charged in those other states in the process." Pustay &
Zardkoohi, An Economic Analysis of Liquor Price Affirmation Laws: Do They
Burden Interstate Commerce?, 48 La.L.Rev. 649, 673-674 (1988).

The dissent argues that the facial discrimination inherent in the present statute
does not establish its invalidity because no brewer does business solely in
Connecticut and because there is no evidence that any shipper sells beer
exclusively within that State. Post, at 348. As far as I know we have never
required a plaintiff to show that a statute which facially discriminates against
out-of-state business in fact benefits a particular in-state business, and we have
flatly rejected the kindred contention that the plaintiff could not prevail if the
benefit to in-state business was minimal, see New Energy Co. of Indiana v.
Limbach, 486 U.S. 269, 276-277, 108 S.Ct. 1803, 1809, 100 L.Ed.2d 302
(1988). It would make little sense to require a showing that an in-state business
in fact exists without also requiring a showing that it is in fact benefited. I see
no reason to impose such a burden in order to strike down a statute that is
facially discriminatory under the Commerce Clause, any more than we would
require the person challenging under the Fourteenth Amendment a state law
permitting only Aleuts to vote y mail to show that there are in fact Aleut
citizens of the State capable of benefiting from that discrimination.