Bar Exam — MBE (Multistate Bar Exam)Constitutional LawMedium
A state legislature enacts a law prohibiting all commercial advertising for alcoholic beverages within its borders, citing concerns about public health and underage drinking. A national brewing company challenges the law, arguing it violates the Commerce Clause. Which of the following best describes the likely outcome of the brewing company's challenge?
- AThe law will likely be struck down because it discriminates against out-of-state commerce without a compelling state interest.
- BThe law will likely be upheld if the state can demonstrate a rational basis for the prohibition.
- CThe law will likely be struck down because it infringes on the brewing company's First Amendment rights to commercial speech.
- DThe law will likely be upheld because states have broad powers under the Twenty-First Amendment to regulate alcohol.
Show answer & explanationAnswer & explanation
Correct answer: D. The law will likely be upheld because states have broad powers under the Twenty-First Amendment to regulate alcohol.
The Twenty-First Amendment grants states broad power to regulate the importation and sale of alcoholic beverages within their borders, often allowing regulations that would otherwise violate the Commerce Clause. This power is not absolute but provides significant deference to state alcohol regulations.
Why the other options are wrong
- A. While the dormant Commerce Clause generally prohibits state discrimination against out-of-state commerce, the Twenty-First Amendment provides an exception for alcohol regulation.
- B. The rational basis test is too deferential; the Twenty-First Amendment provides a specific, stronger basis for upholding such laws, but it's not merely a rational basis issue.
- C. While commercial speech rights exist, the Twenty-First Amendment's power over alcohol regulation often trumps these concerns, especially for a complete ban on advertising.
Twenty-First Amendment Power
The Twenty-First Amendment grants states broad authority to regulate the importation, sale, and distribution of alcoholic beverages within their borders.
- Repealed Prohibition (18th Amendment)
- Grants states unique power over alcohol regulation
- Can override Commerce Clause concerns in some cases
Memory trick: Twenty-First gives states the final say on the wine.