                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 18a0035p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 CLAYTON BYRD, in his official capacity as Executive      ┐
 Director of the Tennessee Alcoholic Beverage             │
 Commission; TENNESSEE FINE WINES AND SPIRITS, LLC,       │
 dba Total Wine Spirits Beer & More; AFFLUERE             │
 INVESTMENTS, INC., dba Kimbrough Fine Wine               │
 & Spirits,                                                   >   No. 17-5552
                                                          │
                                 Plaintiffs-Appellees,    │
                                                          │
        v.                                                │
                                                          │
                                                          │
 TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION,        │
                               Defendant - Appellant.     │
                                                          ┘

                         Appeal from the United States District Court
                      for the Middle District of Tennessee at Nashville.
                     No. 3:16-cv-02738—Kevin H. Sharp, District Judge.

                                 Argued: November 30, 2017

                            Decided and Filed: February 21, 2018

              Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.

                                     _________________

                                         COUNSEL

ARGUED: Richard L. Colbert, KAY GRIFFIN, PLLC, Nashville, Tennessee, for Appellant.
William J. Murphy, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, for Appellee
Tennessee Fine Wines and Spirits. Keith C. Dennen, FARRIS BOBANGO, PLC, Nashville,
Tennessee, for Appellee Affluere Investments. ON BRIEF: Richard L. Colbert, John J. Griffin,
Jr., Nina M. Eiler, KAY GRIFFIN, PLLC, Nashville, Tennessee, for Appellant. William J.
Murphy, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland, Edward M. Yarbrough, W.
Justin Adams, BONE MCALLESTER NORTON PLLC, Nashville, Tennessee, for Appellee
Tennessee Fine Wines and Spirits. Keith C. Dennen, FARRIS BOBANGO, PLC, Nashville,
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                 Page 2


Tennessee, for Appellee Affluere Investments. Sarah K. Campbell, OFFICE OF THE
TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee Clayton Byrd.

        MOORE, J., delivered the opinion of the court in which DAUGHTREY, J., joined, and
SUTTON, J., joined in part. SUTTON, J. (pp. 24–34), delivered a separate opinion concurring
in part and dissenting in part.
                                      _________________

                                           OPINION
                                      _________________

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Tennessee Wine and
Spirits Retailers Association (“Association”) appeals the district court’s order granting summary
judgment regarding § 57-3-204(b) of Tennessee Code Annotated.            Under § 57-3-204(b), to
receive a retailer-alcoholic-beverages license, a person, corporation, or firm needs to be a
Tennessee resident for at least two years, and to renew a license, there is a ten-year requirement.
After examination, the district court determined that these durational-residency requirements
violate the dormant Commerce Clause.

       For the reasons discussed below, we AFFIRM the district court’s judgment declaring
§ 57-3-204(b)(2)(A), (3)(A)–(B), and (3)(D) in violation of the dormant Commerce Clause and
SEVER those provisions from the Tennessee statute.

                                      I. BACKGROUND

       In Tennessee, the distribution of alcoholic beverages occurs through a “three-tier
system.” Jelovsek v. Bredesen, 545 F.3d 431, 433 (6th Cir. 2008). “The Tennessee Alcoholic
Beverage Commission (‘TABC’) issues separate classes of licenses to manufacturers and
distillers, wholesalers, and liquor retailers.” Id. at 433–34 (citing Tenn. Code Ann. § 57-3-201).
“Manufacturers are limited to selling to wholesalers; wholesalers may sell to retailers, or in some
cases other wholesalers; consumers are required to buy only from retailers.” Id. at 434 (citing
Tenn. Code Ann. § 404(b)–(d)).

       A license from the TABC is required to sell “alcoholic spirituous beverages, including
beer and malt beverages.” Tenn. Code Ann. § 57-3-204(a). However, to obtain a license, an
 No. 17-5552         Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                 Page 3


individual must have “been a bona fide resident of [Tennessee] during the two-year period
immediately preceding the date upon which application is made to the commission.” Id. § 57-3-
204(b)(2)(A). Additionally, the statute imposes a ten-year residency requirement to renew the
license. Id.

       A corporation faces similar barriers, and it cannot receive a license “if any officer,
director or stockholder owning any capital stock in the corporation, would be ineligible to
receive a retailer’s license for any reason specified in subdivision (b)(2).”         Id. § 57-3-
204(b)(3)(A). Moreover, “[a]ll of [a corporation’s] capital stock must be owned by individuals
who are residents of [Tennessee] and either have been residents of the state for the two (2) years
immediately preceding the date application is made to the commission or,” for renewal, “has at
any time been a resident of [Tennessee] for at least ten (10) consecutive years.” Id. § 57-3-
204(b)(3)(B).

       Two entities—Plaintiff-Appellee Tennessee Fine Wines and Spirits, LLC, d/b/a Total
Wine Spirits Beer & More, and Plaintiff-Appellee Affluere Investments, Inc., d/b/a/ Kimbrough
Fine Wine & Spirits—did not satisfy these barriers prior to applying for retail licenses. As of
November 2016, Fine Wines’s principal address and Affluere’s principal address were outside of
Tennessee. R. 23-2 (Resp. Ex. 2) (Page ID #133); R. 23-3 (Resp. Ex. 3) (Page ID #134). And
Fine Wines’s members are not Tennessee residents. R. 55-1 (Mot. Summ. J. Ex. 1 ¶ 5) (Page ID
#298). Therefore, the TABC deferred voting on these applications. Id. ¶¶ 13, 15 (Page ID
#299); R. 1-1 (Compl. ¶ 15) (Page ID #7); R. 1-2 (Affluere Answer ¶ 15) (Page ID #38).

       When the Association, which represents Tennessee’s business owners, discovered that
Fine Wines and Affluere had pending applications, it informed the TABC that litigation was
likely. R. 1-1 (Compl. ¶¶ 2, 16, 17) (Page ID #5, 8); R. 80 (Ass’n Am. Answer ¶¶ 2, 16, 17)
(Page ID #495, 498). Because of these conflicts, Tennessee’s Attorney General filed this action
in the Chancery Court for Davidson County, on behalf of Plaintiff-Appellee Clayton Byrd, the
Executive Director of the TABC, to obtain a declaratory judgment construing the
constitutionality of the durational-residency requirements. R. 1-1 (Compl. at 1) (Page ID #4).
 No. 17-5552             Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                            Page 4


The Defendant Association removed the case to the United States District Court for the Middle
District of Tennessee.1

        The district court determined that the durational-residency requirements are
unconstitutional. See Byrd v. Tenn. Wine & Spirits Retailers Ass’n, 259 F. Supp. 3d 785, 797–98
(M.D. Tenn. 2017). Based on the statutory language, the district court found that the durational-
residency requirements are facially discriminatory. See id. at 790. And although the Twenty-
first Amendment does give Tennessee power to regulate alcoholic beverages, the district court
“agree[d] with the Fifth Circuit that ‘state regulations of the retailer and wholesaler tiers are not
immune from Commerce Clause scrutiny just because they do not discriminate against out-of-
state liquor.’” Id. at 790, 793 (quoting Cooper v. Tex. Alcoholic Beverage Comm’n (Cooper II),
820 F.3d 730, 743 (5th Cir.), cert. denied sub nom. Tex. Package Stores Ass’n, Inc. v. Fine Wine
& Spirits of N. Tex., LLC, --- U.S. ---, 137 S. Ct. 494 (2016)). Additionally, nondiscriminatory
alternatives could achieve the durational-residency requirements’ purposes—citizen health and
alcohol regulation. Id. at 796–97. The district court therefore determined that Tennessee’s
durational-residency requirements violate the dormant Commerce Clause and granted Fine
Wines’s motion for summary judgment. Id. at 797–98.

                                              II. DISCUSSION

        We review de novo a district court’s decision to grant summary judgment, Lenscrafters,
Inc. v. Robinson, 403 F.3d 798, 802 (6th Cir. 2005), and we also review de novo a district court’s
determination of the constitutionality of a state statute, Cmtys. for Equity v. Mich. High Sch.
Athletic Ass’n, 459 F.3d 676, 680 (6th Cir. 2006). Granting summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). For this determination, we review all facts in a light


        1
           After the Association removed the action to federal court, R. 1 (Notice Removal at 1) (Page ID #1), the
district court realigned Fine Wines and Affluere as plaintiffs because, in his complaint, Byrd contended that the
durational-residency requirements may be unconstitutional, which the Attorney General highlighted in two opinions.
R. 52 (Op. Mem. at 11) (Page ID #282); R. 53 (Order ¶ 2) (Page ID #289). However, in his response to Fine
Wines’s motion for summary judgment, Byrd asserted that the durational-residency requirements are not
unconstitutional. See R. 73 (Resp. at 1–13) (Page ID #450–62). Byrd continues to assert during this appeal that the
durational-residency requirements are not unconstitutional. See Appellee Byrd Br. at 3. 
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                             Page 5


that is most favorable to, and draw all reasonable inferences in favor of, the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A. The Twenty-first Amendment Does Not Immunize Tennessee’s Durational-Residency
   Requirements

        Under the Supreme Court’s governing standard, Tennessee’s interests in the durational-
residency requirements are not closely related to its power under the Twenty-first Amendment.
Therefore, the Twenty-first Amendment does not immunize Tennessee’s durational-residency
requirements from scrutiny under the dormant Commerce Clause.

        1. Tennessee’s Durational-Residency Requirements in Light of Granholm and
           Bacchus

        Section 2 of the U.S. Constitution’s Twenty-first Amendment states that “[t]he
transportation or importation into any State, Territory, or possession of the United States for
delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby
prohibited.” U.S. Const. amend XXI, § 2. Pursuant to the Twenty-first Amendment, a state has
the power to regulate the distribution of alcoholic beverages into the state or within its borders.

        “Initially, the Supreme Court afforded the states nearly limitless power to regulate
alcohol under the [Twenty-first Amendment].” Heald v. Engler, 342 F.3d 517, 522 (6th Cir.
2003), aff’d sub nom. Granholm v. Heald, 544 U.S. 460 (2005). However, “as early as the
1960s, the Supreme Court signaled a break with this line of reasoning.”2 Id. And in 1984, the


        2
          The dissent summarizes the history of § 2 to support the conclusion that states have the authority to
impose durational-residency requirements on owners because these requirements are regarding intrastate distribution
of alcohol beverages, not the interstate flow of product. See Dissent Op. at 25–29. However, this history is less
persuasive than the dissent makes it sound.
          The Supreme Court already conducted an extensive historical analysis in Granholm, 544 U.S. at 476–87, to
reach its own interpretation of modern precedent: “[w]hen a state statute directly regulates or discriminates against
interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests, [the
Supreme Court has] generally struck down the statute without further inquiry,” id. at 487 (emphasis added) (quoting
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986)). Thus, contrary to the
dissent’s conclusion, the proper backdrop to understand the interplay between the Twenty-first Amendment and the
Commerce Clause is this statement in Granholm—a state cannot use the Twenty-first Amendment to impede
directly or indirectly on interstate commerce; even an effect on interstate commerce is invalid.
         Additionally, the dissent fails to acknowledge that the Supreme Court has explicitly transitioned from its
original interpretation of the Twenty-first Amendment. For instance, the Supreme Court’s opinion in Granholm,
544 U.S. at 484–86, abrogated State Bd. of Equalization v. Young’s Mkt. Co., 299 U.S. 59 (1936), which the dissent
 No. 17-5552             Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                            Page 6


Supreme Court reiterated in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984), that the
Commerce Clause limits a state’s power under the Twenty-first Amendment. Heald, 342 F.3d at
523.

        In Bacchus, the Supreme Court noted that “[i]t is by now clear that the [Twenty-first]
Amendment did not entirely remove state regulation of alcoholic beverages from the ambit of the
Commerce Clause.” 468 U.S. at 275. “To draw a conclusion that the Twenty-first Amendment
has somehow operated to ‘repeal’ the Commerce Clause wherever regulation of intoxicating
liquors is concerned would . . . be an absurd oversimplification.” Id. (quoting Hostetter v.
Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331–32 (1964)). The Supreme Court stated

does not acknowledge. In particular, the Supreme Court explicitly rejected the paragraph in Young’s Market that the
dissent quotes on page twenty-eight:
                 The aim of the Twenty-first Amendment was to allow States to maintain an effective and
        uniform system for controlling liquor by regulating its transportation, importation, and use. The
        Amendment did not give States the authority to pass nonuniform laws in order to discriminate
        against out-of-state goods, a privilege they had not enjoyed at any earlier time.
                  Some of the cases decided soon after ratification of the Twenty-first Amendment did not
        take account of this history and were inconsistent with this view. In State Bd. of Equalization of
        Cal. v. Young’s Market Co., 299 U.S. 59, 62 (1936), for example, the Court rejected the argument
        that the Amendment did not authorize discrimination:
                 “The plaintiffs ask us to limit this broad command [of § 2]. They request us to
                 construe the Amendment as saying, in effect: The State may prohibit the
                 importation of intoxicating liquors provided it prohibits the manufacture and
                 sale within its borders; but if it permits such manufacture and sale, it must let
                 imported liquors compete with the domestic on equal terms. To say that, would
                 involve not a construction of the Amendment, but a rewriting of it.”
        The Court reaffirmed the States’ broad powers under § 2 in a series of cases, see Mahoney v.
        Joseph Triner Corp., 304 U.S. 401 (1938); Indianapolis Brewing Co. v. Liquor Control Comm’n,
        305 U.S. 391 (1939); Ziffrin, Inc. v. Reeves, 308 U.S. 132 (1939); Joseph S. Finch & Co. v.
        McKittrick, 305 U.S. 395 (1939), and unsurprisingly many States used the authority bestowed on
        them by the Court to expand trade barriers. T. Green, Liquor Trade Barriers: Obstructions to
        Interstate Commerce in Wine, Beer, and Distilled Spirits 4, and App. I (1940) (stating in the wake
        of Young’s Market that “[r]ivalries and reprisals have thus flared up”).
                 It is unclear whether the broad language in Young’s Market was necessary to the result
        because the Court also stated that “the case [did] not present a question of discrimination
        prohibited by the commerce clause.” 299 U.S., at 62. The Court also declined, contrary to the
        approach we take today, to consider the history underlying the Twenty-first Amendment. Id., at
        63–64. This reluctance did not, however, reflect a consensus that such evidence was irrelevant or
        that prior history was unsupportive of the principle that the Amendment did not authorize
        discrimination against out-of-state liquors. . . .
Granholm, 544 U.S. at 484–86 (alterations in original). The Supreme Court also implied that Young’s Market is
inconsistent with the Wilson Act and the Webb-Kenyon Act. See id. at 484–85. Therefore, cases such as Young’s
Market are not reliable for this analysis.
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                 Page 7


that “both the Twenty-first Amendment and the Commerce Clause are parts of the same
Constitution and each must be considered in light of the other and in the context of the issues and
interests at stake in any concrete case.” Id. (quoting Hostetter, 377 U.S. at 332). Additionally,
the Supreme Court emphasized that “[s]tate laws that constitute mere economic protectionism
are therefore not entitled to the same deference as laws enacted to combat the perceived evils of
an unrestricted traffic in liquor.” Id. at 276. Because of these issues, the Supreme Court stated
that a court needs to consider “whether the interests implicated by a state regulation are so
closely related to the powers reserved by the Twenty-first Amendment that the regulation may
prevail, notwithstanding that its requirements directly conflict with express federal policies.” Id.
at 275–76 (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984)).

       The Supreme Court examined Hawaii’s tax exemption at the wholesale tier for okolehao,
which is a root from an indigenous shrub, and pineapple wine in Bacchus. Id. at 265. The
question before the Supreme Court was “whether the principles underlying the Twenty-first
Amendment are sufficiently implicated by the exemption for okolehao and pineapple wine to
outweigh the Commerce Clause principles that would otherwise be offended.” Id. at 275. The
Supreme Court noted that Hawaii did “not seek to justify its tax on the ground that it was
designed to promote temperance or to carry out any other purpose of the Twenty-first
Amendment, but instead acknowledges that the purpose was ‘to promote a local industry.’” Id.
at 276. Thus, the Supreme Court determined that the Twenty-first Amendment did not immunize
Hawaii’s law “because the tax violates a central tenet of the Commerce Clause but is not
supported by any clear concern of the Twenty-first Amendment.” Id.

       In Granholm, the Supreme Court examined whether “a State’s regulatory scheme that
permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-
state wineries to do so violate[s] the dormant Commerce Clause in light of § 2 of the Twenty-
first Amendment.” 544 U.S. at 471. When considering this question, the Supreme Court stated
that “[s]tate policies are protected under the Twenty-first Amendment when they treat liquor
produced out of state the same as its domestic equivalent.” Id. at 489. And because the “instant
cases” before the Supreme Court “involve[d] straightforward attempts to discriminate in favor of
local producers . . . [t]he discrimination [was] contrary to the Commerce Clause and [was] not
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                   Page 8


saved by the Twenty-first Amendment.” Id. The Supreme Court also reasserted its previous
recognition that “the three-tier system itself is ‘unquestionably legitimate.’” Id. at 489 (quoting
North Dakota v. United States, 495 U.S. 423, 432 (1990)).

       The interaction between Bacchus and Granholm has created some uncertainty. Does
scrutiny under the dormant Commerce Clause apply only when an alcoholic-beverages law
regulates producers or products?        And does the Twenty-first Amendment automatically
immunize a state law regarding retailers and wholesalers of alcoholic beverages? The Second,
Fourth, Fifth, and Eighth Circuits have attempted to reconcile the cases. Cooper II, 820 F.3d at
743; S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control, 731 F.3d 799, 809,
810 (8th Cir. 2013); Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185, 190 (2nd Cir. 2009); Brooks v.
Vassar, 462 F.3d 341, 352 (4th Cir. 2006).

       For example, in Arnold’s Wines the Second Circuit examined a state law allowing in-state
licensed retailers to deliver alcoholic beverages to customers’ homes but preventing out-of-state
retailers from doing the same. 571 F.3d at 188. The court stated that “[t]he Granholm Court set
forth the test for determining the constitutionality of state liquor regulations,” which was that
“[i]f the state measure discriminates in favor of in-state producers or products, the regulatory
regime is not automatically saved by the Twenty-first Amendment simply by virtue of the special
nature of the product regulated.” Id. at 189. Additionally, the court reasoned that “[i]t is only
where states create discriminatory exceptions to the three-tier system, allowing in-state, but not
out-of-state, liquor to bypass the three regulatory tiers, that their laws are subject to invalidation
based on the Commerce Clause.” Id. at 190. Thus, “Appellants’ challenge to the ABC Law’s
provisions requiring all wholesalers and retailers be present in and licensed by the state . . . [was]
a frontal attack on the constitutionality of the three-tier system itself.”        Id.   “Appellants’
argument [was] therefore directly foreclosed by the Granholm Court’s express affirmation of the
legality of the three-tier system.” Id. at 190–91.

       In Southern Wine, the Eighth Circuit examined Missouri’s law requiring a corporation—
including its directors, officers, and super-majority of shareholders—to be residents of Missouri
for three years prior to obtaining a wholesaler-alcoholic-beverages license. 731 F.3d at 802–03.
When reviewing “the current state of the relationship between the dormant Commerce Clause
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                  Page 9


and the Twenty-first Amendment,” the Eighth Circuit noted that, “in its most recent
pronouncement on the subject, the Supreme Court simultaneously cited Bacchus and said that
‘state policies are protected under the Twenty-first Amendment when they treat liquor produced
out of the state the same as its domestic equivalent.’” Id. at 809 (citing Granholm, 544 U.S. at
489). “Given Granholm’s recency and specificity,” the court decided that Granholm provided
the “best guidance.” Id. The Eighth Circuit concluded that “[i]f it is beyond question that States
may require wholesalers to be ‘in-state’ without running afoul of the Commerce Clause, then . . .
States have flexibility to define the requisite degree of ‘in-state’ presence to include the in-state
residence of wholesalers’ directors and officers, and a super-majority of their shareholders.” Id.
at 810 (citation omitted). “Insofar as Granholm imported [Bacchus’s] balancing approach to
regulations of the three-tier system, . . . it drew a bright line between the producer tier and the
rest of the system.” Id. Therefore, in the view of the Eighth Circuit, the residency requirement
for alcoholic-beverages wholesalers did not violate the dormant Commerce Clause. See id. at
809.

       Conversely, the Fifth Circuit determined that Bacchus is still good law. In Cooper II, the
defendant, a Texas trade association, moved for relief from an injunction under Federal Rule of
Civil Procedure 60(b) on the ground that Granholm created a significant change in the law since
the Fifth Circuit enjoined a state durational-residency requirement in Cooper v. McBeath
(Cooper I), 11 F.3d 547 (5th Cir. 1994). Cooper II, 820 F.3d at 734, 742. However, the Fifth
Circuit disagreed.   After examining the language in Granholm, the Fifth Circuit held that
Granholm did not overrule or alter Bacchus. Id. at 742. And regarding Granholm’s statement
that “state policies are protected under the Twenty-first Amendment when they treat liquor
produced out of state the same as its domestic equivalent,” the Fifth Circuit determined that this
statement did not limit scrutiny under the Commerce Clause to producers because the statement
was dicta. Id. at 743. Instead, the Fifth Circuit “interpreted [Granholm] as reaffirming the
applicability of the Commerce Clause to state alcohol regulations, but to a lesser extent when the
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                               Page 10


regulations concern the retailer or wholesaler tier as distinguished from the producer tier, of the
three-tier distribution system.”3 Id.

         We find the Fifth Circuit’s reconciliation of Bacchus and Granholm persuasive for six
reasons. First, the Supreme Court explicitly declined to overrule Bacchus in Granholm. Second,
in Granholm, the Supreme Court reiterated Bacchus’s concern about the protection of economic
interests across state lines, suggesting that the Twenty-first Amendment does not automatically
immunize a state’s alcoholic-beverages law regarding wholesalers or retailers.                             Third, the
Supreme Court emphasized that the Twenty-first Amendment does not permit a state to
discriminate on the basis of citizenship; accordingly, the flow of products across state lines is not
the sole concern under the dormant Commerce Clause. Fourth, the Supreme Court again stated
that the Commerce Clause limits the Twenty-first Amendment. Fifth, the Supreme Court also
stated that there are times when the three-tier system is invalid. And lastly, Granholm did not
limit its application of the Commerce Clause to alcoholic-beverages laws regarding producers.4
Thus, Bacchus and Granholm are reconcilable.


         3
             The dissent argues that the Fifth Circuit misread Granholm because the Fifth Circuit’s test would allow a
court to replace the views of the state legislature with a court’s own perspective. See Dissent Op. at 32. For this
argument, the dissent states that Granholm “gave [states] ‘virtually complete control’ over ‘how to structure th[at]
. . . . system.” Id. (second alteration in original) (quoting Granholm, 544 U.S. at 488).
          However, the dissent skews this statement in Granholm. First, Granholm itself did not grant states
complete control regarding the composition of a distribution system; instead, the Supreme Court stated that “[t]he
Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale of
liquor and how to structure the liquor distribution system.” Granholm, 544 U.S. at 488 (emphasis added) (quoting
Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980)). By using the word
“virtually,” the Supreme Court noted that there are limits to a state’s power. Additionally, immediately after making
this statement, the Supreme Court qualified the type of control that is acceptable: “A State which chooses to ban the
sale and consumption of alcohol altogether could bar its importation; and, as our history shows, it would have to do
so to make its laws effective. States may also assume direct control of liquor distribution through state-run outlets
or funnel sales through the three-tier system.” Id. at 488–89. After noting the types of restrictions that are valid, the
Supreme Court declared that other “discrimination is contrary to the Commerce Clause and is not saved by the
Twenty-first Amendment.” Id. at 489. In the preceding paragraph, the Supreme Court noted that “the Twenty-first
Amendment did not give the States complete freedom to regulate where other constitutional principles are at stake.
. . . [T]he Twenty-first Amendment does not immunize all laws from Commerce Clause challenge.” Id. at 488
(discussing Bacchus, Brown-Forman, and Healy). Thus, contrary to the dissent’s argument, the Fifth Circuit’s
reasoning is in line with the Supreme Court’s determinations in Granholm—the Twenty-first Amendment does not
validate a state legislature’s discriminatory laws.
         4
         Even after the Supreme Court decided Granholm, we have continued to rely on Bacchus. See Jelovsek,
545 F.3d at 437 (“The parties, as well as the district court, spent a great deal of effort examining whether, and to
what extent, Granholm applies to the cases before us. We believe Bacchus is also instructive in this case.”).
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                             Page 11


         First, the Supreme Court in Granholm explicitly declined to overrule Bacchus; therefore,
the reasoning in Bacchus still stands:

                 Recognizing that Bacchus is fatal to their position, the States suggest it
         should be overruled or limited to its facts. As the foregoing analysis makes clear,
         we decline their invitation. Furthermore, Bacchus does not stand alone in
         recognizing that the Twenty-first Amendment did not give States complete
         freedom to regulate where other constitutional principles are at stake. A retreat
         from Bacchus would also undermine Brown-Forman and Healy. These cases
         invalidated state liquor regulations under the Commerce Clause. Indeed, Healy
         explicitly relied on the discriminatory character of the Connecticut price
         affirmation statute. 491 U.S., at 340–41. Brown-Forman and Healy lend
         significant support to the conclusion that the Twenty-first Amendment does not
         immunize all laws from Commerce Clause challenge.

Granholm, 544 U.S. at 488. Clearly, the Supreme Court refused to overrule Bacchus or limit
Bacchus to its facts.

         Second, in Granholm, the Supreme Court focused on a general Commerce Clause
principle—the prohibition of discrimination against out-of-state economic interests. The Court
began by discussing this general principle: “[t]ime and again this Court has held that, in all but
the narrowest circumstances, state laws violate the Commerce Clause if they mandate
‘differential treatment of in-state and out-of-state economic interests that benefits the former and
burdens the latter.’” Id. at 472 (emphasis added) (quoting Or. Waste Sys., Inc. v. Dep’t of Envtl.
Quality, 511 U.S. 93, 99 (1994)). “When a state statute directly regulates or discriminates
against interstate commerce, or when its effect is to favor in-state economic interests over out-of-
state interests, [the Supreme Court has] generally struck down the statute without further
inquiry.”5 Id. at 487 (emphasis added) (quoting Brown-Forman, 476 U.S. at 579).


         5
           The dissent seems to argue that the Commerce Clause limits only state actions regarding alcohol
distribution that regulate interstate activity, not intrastate activity having an effect on interstate commerce.
However, the Supreme Court’s statement that “[s]tates may not enact laws that burden out-of-state producers or
shippers simply to give a competitive advantage to in-state businesses,” seems to suggest otherwise. Granholm,
544 U.S. at 472. Additionally, the Supreme Court has stated that “[w]hen a state statute directly regulates or
discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state
interests, [the Supreme Court has] generally struck down the statute without further inquiry.” Id. at 487 (emphasis
added) (quoting Brown-Forman, 476 U.S. at 579). In Brown-Forman, the Supreme Court determined that the
Twenty-first Amendment did not protect New York’s law that required a distiller or agent to affirm that its alcohol
prices were not lower in any other state because that law would have a negative economic effect in other states. See
Brown-Forman, 476 U.S. at 585. Here, because Tennessee is favoring in-state economic interests over out-of-state
 No. 17-5552             Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                            Page 12


        Third, the Supreme Court also discussed the general principle that a state cannot bar out-
of-state citizens from engaging in its economy; thus, a state’s alcoholic-beverages law is not
automatically valid just because it “treat[s] liquor produced out of state the same as its domestic
equivalent.”6      Id. at 489.       The Supreme Court stated that “[t]he rule prohibiting state
discrimination against interstate commerce follows also from the principle that States should not
be compelled to negotiate with each other regarding favored or disfavored status for their own
citizens.” Id. at 472. Laws cannot “deprive citizens of their right to have access to the markets
of other States on equal terms.” Id. at 473. Additionally, the Supreme Court has “viewed with
particular suspicion state statutes requiring business operations to be performed in the home
State that could more efficiently be performed elsewhere.”                    Id. at 475.      For instance, in
Granholm, the Supreme Court stated that “New York’s in-state presence requirement runs
contrary to [the Supreme Court’s] admonition that States cannot require an out-of-state firm ‘to
become a resident in order to compete on equal terms.’” Id. at 475 (first quoting Halliburton Oil
Well Cementing Co. v. Reily, 373 U.S. 64, 72 (1963); and then citing Ward v. Maryland,
12 Wall. 418 (1871)). Therefore, scrutiny under the dormant Commerce Clause is not limited to
laws regarding products.

        Fourth, the Supreme Court again emphasized in Granholm that the Commerce Clause
limits a state’s power under the Twenty-first Amendment. According to the Court, “[t]he central
purpose of the [Twenty-first Amendment] was not to empower States to favor local liquor
industries by erecting barriers to competition.” Id. at 487 (quoting Bacchus, 468 U.S. at 276).
Regardless of the Twenty-first Amendment, “state regulation of alcohol is limited by the
nondiscrimination principle of the Commerce Clause.” Id. (first citing Bacchus, 468 U.S. at 276;
then citing Brown-Forman, 476 U.S. at 573; and then citing Healy v. Beer Inst., 491 U.S. 324



economic interests by preventing out-of-state citizens from engaging in Tennessee’s economy for several years,
Tennessee is not merely regulating the distribution of alcohol within its borders—it is dictating who can and cannot
engage in its economy.
        6
           The dissent also attempts to limit Granholm’s holding to the statement that a law is invalid only when it
“treat[s] liquor produced out of state the same as its domestic equivalent.” See Dissent Op. at 31 (quoting
Granholm, 544 U.S. at 489). However, the dissent does not acknowledge Section II.A in Granholm, which devotes
two pages to the principle that a state cannot bar out-of-state citizens from engaging in its economy. See Granholm,
544 U.S. at 472–73. 
 No. 17-5552             Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                              Page 13


(1989)). Therefore, in Granholm, the Supreme Court continued to recognize that the Commerce
Clause does limit the Twenty-first Amendment.

        Fifth, a state’s alcoholic-beverages law is not immune simply because it is part of a three-
tier system. In Granholm, New York and Michigan “argue[d] that any decision invalidating their
direct-shipment laws would call into question the constitutionality of the three-tier system.” Id.
at 488.     But the Supreme Court disagreed, noting that, although three-tier systems are
“unquestionably legitimate,” those systems are not valid when they “involve straightforward
attempts to discriminate in favor of local producers.” Id. at 488, 489. Based on this language, a
state’s alcoholic-beverages law is not automatically valid simply because it addresses a portion
of a three-tier system.7


        7
           The dissent asserts that the Supreme Court “never purported to overrule its prior statements and holdings
approving state authority over alcohol distribution as opposed to production.” Dissent Op. at 34. And, according to
the dissent, “[u]ntil the Supreme Court says so, we may not assume that the Twenty-first Amendment no longer
‘create[s] an exception to the normal operation of the Commerce Clause.’” Id. (second alteration in original)
(quoting Capital Cities, 467 U.S. at 712).
          But the Supreme Court has said so. In fact, it categorized its modern precedent into three distinct
categories: (1) the Twenty-first Amendment does not protect state laws that violate other parts of the Constitution,
(2) the Twenty-first Amendment does not eliminate Congress’ Commerce Clause power over alcoholic beverages,
i.e., “products,” and (3) the Commerce Clause limits state regulation of alcohol, i.e., distribution. See Granholm,
544 U.S. at 486–87. The language that the Supreme Court uses to describe these boundaries is particularly
compelling:
                 The modern § 2 cases fall into three categories.
                 First, the Court has held that state laws that violate other provisions of the Constitution
        are not saved by the Twenty-first Amendment. The Court has applied this rule in the context of
        the First Amendment, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); the
        Establishment Clause, Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982); the Equal Protection
        Clause, [Craig v. Boren, 429 U.S. 190, 204–09 (1976)]; the Due Process Clause, Wisconsin v.
        Constantineau, 400 U.S. 433 (1971); and the Import–Export Clause, Department of Revenue v.
        James B. Beam Distilling Co., 377 U.S. 341 (1964).
                 Second, the Court has held that § 2 does not abrogate Congress’ Commerce Clause
        powers with regard to liquor. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); California
        Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). The argument that
        “the Twenty-first Amendment has somehow operated to ‘repeal’ the Commerce Clause” for
        alcoholic beverages has been rejected. Hostetter, 377 U.S., at 331–332. Though the Court’s
        language in Hostetter may have come uncommonly close to hyperbole in describing this argument
        as “an absurd oversimplification,” “patently bizarre,” and “demonstrably incorrect,” ibid., the
        basic point was sound.
                 Finally, and most relevant to the issue at hand, the Court has held that state regulation of
        alcohol is limited by the nondiscrimination principle of the Commerce Clause. Bacchus, 468 U.S.,
        at 276; Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573 (1986);
        Healy v. Beer Institute, 491 U.S. 324 (1989). “When a state statute directly regulates or
 No. 17-5552             Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                              Page 14


        And lastly, the Supreme Court did not state that the Commerce Clause applies only to
alcoholic-beverages laws regarding producers. The statement that “[s]tate policies are protected
under the Twenty-first Amendment when they treat liquor produced out of state the same as its
domestic equivalent” must be read in its context. Id. at 489. The Supreme Court wrote the full
paragraph as follows:

                The States argue that any decision invalidating their direct-shipment laws
        would call into question the constitutionality of the three-tier system. This does
        not follow from our holding. “The Twenty-first Amendment grants the States
        virtually complete control over whether to permit importation or sale of liquor and
        how to structure the liquor distribution system.” Midcal, supra, at 110. A State
        which chooses to ban the sale and consumption of alcohol altogether could bar its
        importation; and, as our history shows, it would have to do so to make its laws
        effective. States may also assume direct control of liquor distribution through
        state-run outlets or funnel sales through the three-tier system. We have
        previously recognized that the three-tier system itself is “unquestionably
        legitimate.” North Dakota v. United States, 495 U.S., at 432. See also id., at 447
        (Scalia, J., concurring in judgment) (“The Twenty-first Amendment . . .
        empowers North Dakota to require that all liquor sold for use in the State be
        purchased from a licensed in-state wholesaler”). State policies are protected
        under the Twenty-first Amendment when they treat liquor produced out of state
        the same as its domestic equivalent. The instant cases, in contrast, involve
        straightforward attempts to discriminate in favor of local producers. The
        discrimination is contrary to the Commerce Clause and is not saved by the
        Twenty-first Amendment.

Id. at 488–89 (emphasis added). A fair reading of this passage leads to one conclusion: the
Supreme Court discussed the relationship between the dormant Commerce Clause and the
Twenty-first Amendment in the context of “producers” simply because Granholm involved
statutes addressing that step in the three-tier system. The Supreme Court did not give any
indication that the Twenty-first Amendment automatically protects laws regarding wholesalers
and retailers.




        discriminates against interstate commerce, or when its effect is to favor in-state economic interests
        over out-of-state interests, we have generally struck down the statute without further inquiry.”
        Brown-Forman, supra, at 579.
Id. (emphasis added). Therefore, the Supreme Court has stated that the Commerce Clause applies to the production
of alcoholic beverages and their distribution.
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n              Page 15


       In summary, based on the language in Granholm, the Supreme Court’s reasoning in
Bacchus continues to apply along with Granholm itself.             Therefore, we now examine
Tennessee’s durational-residency requirements in light of Granholm and Bacchus.

       2. Tennessee’s Interests in the Durational-Residency Requirements Are Not So
          Closely Related to the Powers Reserved by the Twenty-first Amendment

       To determine whether the Twenty-first Amendment immunizes a state’s alcoholic-
beverages law from scrutiny under the dormant Commerce Clause, a court needs to examine
“whether the interests implicated by a state regulation are so closely related to the powers
reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its
requirements directly conflict with express federal policies.” Bacchus, 468 U.S. at 275–76
(quoting Capital Cities, 467 U.S. at 714).

       In Cooper I, the Fifth Circuit examined a Texas law that required an applicant for a
mixed-beverage permit to be a Texas resident for one year before submitting an application.
11 F.3d at 549, 550. The law also had a section that “include[d] what is commonly known as the
‘51 percent rule,’ which forbids the issuance of a permit to any corporation ‘unless at least
51 percent of the stock of the corporation is owned at all times by citizens who have resided
within the state for a period of three years.’” Id. at 549. When examining the state’s interest in
these residency restrictions, the Fifth Circuit stated that “the state’s interest in facilitating
background checks of permit applicants by discriminating against nonresidents is not within the
‘core concerns’ of the Twenty-first Amendment.” Id. at 555 (comparing North Dakota, 495 U.S.
423). The Fifth Circuit emphasized that “[t]he statutory barrier Texas has erected against non-
residents who wish to obtain mixed beverage permits results in shielding the State’s operators
from the rigors of outside competition.” Id. Therefore, it determined that “[t]he discriminatory
. . . residency requirement inherent in the challenged statutory provisions cannot stand.” Id. at
555–56.

       Then, in Cooper II, the Fifth Circuit bolstered its reasoning in Cooper I and stated that
Bacchus’s reasoning still stands:

              In Wine Country [Gift Baskets.com v. Steen, 612 F.3d 809 (5th Cir. 2010)],
       we interpreted [Granholm] as reaffirming the applicability of the Commerce
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                               Page 16


         Clause to state alcohol regulations, but to a lesser extent when the regulations
         concern the retailer or wholesaler tier as distinguished from the producer tier, of
         the three-tier distribution system. Id. at 820–21. State regulations of the producer
         tier “are protected under the Twenty-first Amendment when they treat liquor
         produced out of state the same as its domestic equivalent.” [Granholm], 544 U.S.
         at 489, 125 S.Ct. 1885. But state regulations of the retailer and wholesaler tiers
         are not immune from Commerce Clause scrutiny just because they do not
         discriminate against out-of-state liquor.

                 Because of the Twenty-first Amendment, states may impose a physical-
         residency requirement on retailers and wholesalers of alcoholic beverages despite
         the fact that the residency requirements favor in-state over out-of-state businesses.
         Wine Country, 612 F.3d at 821. The Twenty-first Amendment does not, however,
         authorize states to impose a durational-residency requirement on the owners of
         alcoholic beverage retailers and wholesalers. Id. (citing Cooper [I], 11 F.3d at
         555). Distinctions between in-state and out-of-state retailers and wholesalers are
         permissible only if they are an inherent aspect of the three-tier system. See id. at
         818.

820 F.3d at 743 (footnote omitted). In this language, the Fifth Circuit created an important
distinction: requiring retailer- or wholesaler-alcoholic-beverages businesses to be within the
state may be essential to the three-tier system, but imposing durational-residency requirements is
not, particularly when those durational-residency requirements govern owners.8

         Here, Tennessee’s durational-residency requirements are nearly identical to the
requirements in Cooper I.              In Tennessee, to obtain a retail-alcoholic-beverages permit,
individuals, corporations, firms, directors, officers, and stockholders all need to reside within the
state for two years. See Tenn. Code Ann. § 57-3-204(b). And although requiring wholesaler or
retailer businesses to be physically located within Tennessee may be an inherent aspect of a
three-tier system, see Cooper II, 820 F.3d at 743, imposing durational-residency requirements is
not inherent—a three-tier system can still function without these restrictions.



         8
           The dissent asserts that in-state distribution regulations are always discriminatory in some manner, and in
some ways, the dissent is correct that “[w]hat matters is what type of discrimination is permissible.” Dissent Op. at
32. However, the Fifth Circuit has acknowledged this dilemma, and it rectified the issue—requiring wholesalers and
retailers to be in the state is permissible, but requiring owners to reside within the state for a certain period is not.
See Cooper II, 820 F.3d at 743. Additionally, the dissent argues that Jelovsek has not answered this question, see
Dissent Op. at 31–32, which is contrary to Jelovsek’s statement that the two-year durational-residency requirement
“impermissibly favor[s] Tennessee interests at the expense of interstate commerce.” Jelovsek, 545 F.3d at 438.
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                Page 17


       Tennessee’s durational-residency requirements do not relate to the flow of alcoholic
beverages within the state. Instead, they regulate the flow of individuals who can and cannot
engage in economic activities. The Twenty-first Amendment gives a state the power to oversee
the alcoholic-beverages business, but it does not give a state the power to dictate where
individuals live, because a state’s alcoholic-beverages laws “cannot deprive citizens of their right
to have access to the markets of other States on equal terms.” Granholm, 544 U.S. at 473. “The
central purpose of the [Twenty-first Amendment] was not to empower States to favor local liquor
industries by erecting barriers to competition.” Bacchus, 468 U.S. at 276. Therefore, the
Twenty-first Amendment does not immunize Tennessee’s durational-residency requirements
from scrutiny under the dormant Commerce Clause.

B. Tennessee’s Durational-Residency Requirements Violate the Dormant Commerce
   Clause

       Under the Commerce Clause, Congress can “regulate Commerce . . . among the several
States.” U.S. Const. art. I, § 8, cl. 3. While the Commerce Clause gives Congress authority to
regulate interstate commerce, the converse is that states cannot impede Congress’s power by
“unjustifiably . . . discriminat[ing] against or burden[ing] the interstate flow of articles of
commerce.” Or. Waste, 511 U.S. at 98. This dormant Commerce Clause prevents “economic
protectionism”—e.g., a state protecting in-state economic interests by burdening out-of-state
economic interests. Am. Beverage Ass’n v. Snyder, 735 F.3d 362, 369 (6th Cir. 2013) (quoting
Dept. of Revenue of Ky. v. Davis, 553 U.S. 328, 337–38 (2008)). The dormant Commerce
Clause helps to “effectuate[] the Framers’ purpose to ‘prevent a State from retreating into
economic isolation or jeopardizing the welfare of the Nation as a whole.’” Fulton Corp. v.
Faulkner, 516 U.S. 325, 330–31 (1996) (quoting Okla. Tax Comm’n v. Jefferson Lines, Inc.,
514 U.S. 175, 180 (1995)).

       “To determine whether a statute violates the Commerce Clause, [we] must first determine
whether the statute discriminates against interstate commerce, either by discriminating on its
face, by having a discriminatory purpose, or by discriminating in practical effect.” Cherry Hill
Vineyards, LLC v. Lilly, 553 F.3d 423, 431–32 (6th Cir. 2008) (citing E. Ky. Res. v. Fiscal Court,
127 F.3d 532, 540 (6th Cir. 1997)). “If the statute is discriminatory, . . . it is virtually per se
 No. 17-5552         Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                  Page 18


invalid, unless the state can demonstrate that it ‘advances a legitimate local purpose that cannot
be adequately served by reasonable nondiscriminatory alternatives.’”         Id. at 432 (quoting
Granholm, 544 U.S. at 489). In contrast, a nondiscriminatory statute is presumed valid “unless
the burdens on interstate commerce are ‘clearly excessive in relation to the putative local
benefits.’” Id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

       Because Tennessee’s durational-residency requirements are facially discriminatory and
there is no evidence that Tennessee cannot achieve its goals through nondiscriminatory means,
we hold that § 57-3-204(b)(2)(A), (3)(A)–(B), and (3)(D) are unconstitutional.

       1. The Durational-Residency Requirements Are Facially Discriminatory

       In Jelovsek, we examined § 57-3-207(d) of Tennessee Code Annotated, which
“require[d] a two-year Tennessee residency before a winery license may be obtained and, if the
applicant is a corporation, all of the capital stock must be owned by two-year Tennessee
residents.” 545 F.3d at 438. When reviewing this language, we found that the provision was
“discriminatory on [its] face, and in [its] purpose.”     Id.   This “provision[] impermissibly
favor[ed] Tennessee interests at the expense of interstate commerce.” Id.

       The statutory language presently before us is very similar to the statutory language that
we already examined in Jelovsek; the relevant statute here provides the following:

       No retail license under this section may be issued to any individual: . . . Who has
       not been a bona fide resident of this state during the two-year period immediately
       preceding the date upon which application is made to the commission or, with
       respect to renewal of any license issued pursuant to this section, who has not at
       any time been a resident of this state for at least ten (10) consecutive years[.]

Tenn. Code Ann. § 57-3-204(b)(2)(A). And the statute here imposes similar requirements on
corporations:

       (A) No retail license shall be issued to any corporation if any officer, director   or
       stockholder owning any capital stock in the corporation, would be ineligible        to
       receive a retailer’s license for any reason specified in subdivision (b)(2),         if
       application for such retail license had been made by the officer, director          or
       stockholder in their individual capacity;
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                            Page 19


        (B) All of its capital stock must be owned by individuals who are residents of this
        state and either have been residents of the state for the two (2) years immediately
        preceding the date application is made to the commission or, with respect to
        renewal of any license issued pursuant to this section, who has at any time been a
        resident of this state for at least ten (10) consecutive years;
                 ....

        (D) No stock of any corporation licensed under this section shall be transferred to
        any person who is not a resident of this state and either has not been a resident of
        the state for at least two (2) years next preceding or who at any time has not been
        a resident of this state for at least ten (10) consecutive years.

Id. § 57-3-204(b)(3)(A)–(B), (D).            Because the statute contains these durational-residency
requirements, it prevents out-of-state residents from obtaining retail licenses and protects in-state
residents who are retailers.9 Therefore, we hold that § 57-3-204(b)(2)(A), (3)(A)–(B), and (3)(D)
are facially discriminatory.

        2. Tennessee Could Achieve Its Goals with a Reasonable, Nondiscriminatory
           Alternative

        Tennessee has provided purposes in the statute for imposing oversight of alcoholic
beverages; the statute states the following:

        Because licenses granted under this section include the retail sale of liquor, spirits
        and high alcohol content beer which contain a higher alcohol content than those
        contained in wine or beer, . . . it is in the interest of this state to maintain a higher
        degree of oversight, control and accountability for individuals involved in the
        ownership, management and control of licensed retail premises. For these
        reasons, it is in the best interest of the health, safety and welfare of this state to
        require all licensees to be residents of this state as provided herein and the
        commission is authorized and instructed to prescribe such inspection, reporting
        and educational programs as it shall deem necessary or appropriate to ensure that
        the laws, rules and regulations governing such licensees are observed.

        9
           Because Jelovsek dealt with wine production, the dissent argues that Jelovsek does not dictate the outcome
here. See Dissent Op. at 31–32. Nevertheless, the language in Jelovsek suggests otherwise. In Jelovsek, this court
stated that “[o]ther provisions of the Grape and Wine Law are discriminatory on their face, and in their purpose.
For example, the Grape and Wine Law requires a two-year Tennessee residency before a winery license may be
obtained and, if the applicant is a corporation, all of the capital stock must be owned by two-year Tennessee
residents.” Jelovsek, 545 F.3d at 438 (emphasis added). Although the surrounding language does discuss the
portions of the statute addressing wine production, in the sentence actually examining the durational-residency
requirement, this court did not use the words “product” or “producers.” See id. Thus, this court declared that a two-
year residency requirement is invalid in a statement separate and apart from any portion of the opinion addressing
wine production; unlike the dissent, we cannot shrug off this holding of Jelovsek.
 No. 17-5552           Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                Page 20




Id. § 57-3-204(b)(4). This language asserts two legitimate purposes for the residency restrictions
on retailers: (1) protecting “the health, safety and welfare” of Tennessee’s citizens and (2) using
a higher level of oversight and control over liquor retailers. See North Dakota, 495 U.S. at 432
(identifying “the interest of promoting temperance, ensuring orderly market conditions, and
raising revenue”).

         However, neither Byrd nor the Association argues that a reasonable, nondiscriminatory
alternative cannot achieve Tennessee’s goals. And at oral argument, Fine Wines described
several alternative means: requiring (1) a retailer’s general manager to be a resident of the state,
(2) both in-state and out-of-state retailers to post a substantial bond to receive a license, and
(3) public meetings regarding the issuance of a license. Arguably, Tennessee can achieve its
goals through nondiscriminatory means.          For instance, it could implement technological
improvements, such as creating an electronic database to monitor liquor retailers. But neither
Byrd nor the Association argues that a reasonable, nondiscriminatory alternative cannot achieve
Tennessee’s goals. Therefore, Byrd and the Association have not met their burden.

         In summary, the durational-residency requirements in § 57-3-204(b)(2)(A), (3)(A)–(B),
and (3)(D) are unconstitutional because (1) they are facially discriminatory and (2) neither Byrd
nor the Association has shown that a nondiscriminatory alternative cannot achieve Tennessee’s
goals.

C. We Sever § 57-3-204(b)(2)(A), (3)(A)–(B), and (3)(D) from the Rest of the Statute

         “[W]hen confronting a constitutional flaw in a statute, we try to limit the solution to the
problem” by (1) “enjoin[ing] only the unconstitutional applications of a statute while leaving
other applications in force” or (2) “sever[ing] its problematic portions while leaving the
remainder intact.” Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328–29
(2006). “Accordingly, the ‘normal rule’ is that ‘partial, rather than facial, invalidation is the
required course,’ such that a ‘statute may be declared invalid to the extent that it reaches too far,
but otherwise left intact.’” Id. at 329 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
504 (1985)). However, we must be “mindful that our constitutional mandate and institutional
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                Page 21


competence are limited,” and we must “restrain ourselves from ‘rewriting state law to conform it
to constitutional requirements’ even as we strive to salvage it.” Id. at 329 (quoting Virginia v.
Am. Booksellers Assn., Inc., 484 U.S. 383, 397 (1998)). We also must remember that “the
touchstone for any decision about remedy is legislative intent, for a court cannot ‘use its remedial
powers to circumvent the intent of the legislature.’” Id. at 330 (quoting Califano v. Westcott,
443 U. S. 76, 94 (1979)).

       “Whether a portion of a state’s statute is severable is determined by the law of that state.”
Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 371 (6th Cir. 2006). In Tennessee, “[t]he
doctrine of elision allows a court, under appropriate circumstances when consistent with the
expressed legislative intent, to elide an unconstitutional portion of a statute and find the
remaining provisions to be constitutional and effective.” State v. Tester, 879 S.W.2d 823, 830
(Tenn. 1994). The Tennessee Supreme Court has stated the following regarding the doctrine:

       The doctrine of elision is not favored. The rule of elision applies if it is made to
       appear from the face of the statute that the legislature would have enacted it with
       the objectionable features omitted, and those portions of the statute which are not
       objectionable will be held valid and enforceable provided, of course, there is left
       enough of the act for a complete law capable of enforcement and fairly answering
       the object of its passage. However, a conclusion by the court that the legislature
       would have enacted the act in question with the objectionable features omitted
       ought not to be reached unless such conclusion is made fairly clear of doubt from
       the face of the statute. Otherwise, its decree may be judicial legislation. The
       inclusion of a severability clause in the statute has been held by this Court to
       evidence an intent on the part of the legislature to have the valid parts of the
       statute enforced if some other portion of the statute has been declared
       unconstitutional.

Id. at 830 (quoting Gibson Cty. Special Sch. Dist. v. Palmer, 691 S.W.2d 544, 551 (Tenn. 1985)).
Tennessee’s general assembly has also provided a general severability statute, which states the
following:

       It is hereby declared that the sections, clauses, sentences and parts of the
       Tennessee Code are severable, are not matters of mutual essential inducement,
       and any of them shall be exscinded if the code would otherwise be
       unconstitutional or ineffective. If any one (1) or more sections, clauses, sentences
       or parts shall for any reason be questioned in any court, and shall be adjudged
       unconstitutional or invalid, such judgment shall not affect, impair or invalidate the
       remaining provisions thereof, but shall be confined in its operation to the specific
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                            Page 22


         provision or provisions so held unconstitutional or invalid, and the inapplicability
         or invalidity of any section, clause, sentence or part in any one (1) or more
         instances shall not be taken to affect or prejudice in any way its applicability or
         validity in any other instance.

Tenn. Code Ann. § 1-3-110. Although this statute “does not automatically make [the doctrine of
elision] applicable to every situation[,] . . . when a conclusion can be reached that the legislature
would have enacted the act in question with the unconstitutional portion omitted, then elision of
the unconstitutional portion is appropriate.” State v. Crank, 468 S.W.3d 15, 29 (Tenn. 2015)
(quoting In re Swanson, 2 S.W.3d 180, 189 (Tenn. 1999)).

         Applying Tennessee’s doctrine of elision, we hold that we can sever § 57-3-204(b)(2)(A),
(3)(A)–(B), and (3)(D) from the rest of the statute. In the statute, in addition to protecting
Tennessee citizens by imposing residency requirements, the legislature also stated that Tennessee
wanted “to maintain a higher degree of oversight, control and accountability for individuals
involved in the ownership, management and control of licensed retail premises.”10 Tenn. Code
Ann. § 57-3-204(b)(4).          Review of § 57-3-204 reveals that the statute contains extensive
restrictions relating to this purpose. For instance, an individual cannot receive a retail license if
he or she “is not twenty-one (21) years of age or older” or “has been convicted of a felony.”
Tenn. Code Ann. § 57-3-204(b)(2)(B), (D).                  Additionally, portions of the statute relate to
application fees. See Tenn. Code Ann. § 57-3-204(b)(1). Because the statute contains various
provisions that are unrelated to the durational-residency requirements and that relate to the


         10
            By arguing that drunk driving, domestic abuse, and underage drinking are important interests, the dissent
concludes that the durational-residency requirements would promote health, safety, and welfare. Dissent Op. at 30.
However, in Granholm, the Supreme Court did not credit such blanket assertions. See Granholm, 544 U.S. at 489–
93 (stating that “Commerce Clause cases demand more than mere speculation to support discrimination against out-
of-state goods” and that “the States provide[d] little concrete evidence for the sweeping assertion that they cannot
police direct shipments by out-of-state wineries” to prevent underage drinking and tax evasion). In fact, even in the
Supreme Court cases that the dissent cites for support, the Supreme Court required some type of evidentiary
showing. See North Dakota, 495 U.S. at 433 & n.5 (relying on an affidavit to conclude that “[t]he risk of diversion
into the retail market and disruption of the liquor distribution system is thus both substantial and real.”);
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 505 (1996) (stating “that demand, and hence consumption
throughout the market, is somewhat lower whenever a higher, noncompetitive price level prevails. However,
without any findings of fact, or indeed any evidentiary support whatsoever, we cannot agree with the assertion that
the price advertising ban will significantly advance the State’s interest in promoting temperance.”). Therefore, these
blanket assertions in the statute are not enough, and Tennessee has not provided any evidence that the durational-
residency requirements will promote its alleged interests.
 No. 17-5552              Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                            Page 23


legislature’s purpose, we sever the unconstitutional durational-residency provisions, i.e., § 57-3-
204(b)(2)(A), (3)(A)–(B), and (3)(D), from the rest of the statute.11

                                             III. CONCLUSION

         For the reasons discussed above, we AFFIRM the district court’s judgment declaring
§ 57-3-204(b)(2)(A), (3)(A)–(B), and (3)(D) in violation of the dormant Commerce Clause and
SEVER those provisions from the Tennessee statute.




         11
            According to the dissent, requiring 51% of stockholders to satisfy the durational-residency requirements
is valid, see Dissent Op. at 33, but the dissent fails to acknowledge that a 51% requirement impermissibly stifles
interstate commerce. For instance, the Supreme Court has “struck down a New York law that imposed a higher tax
on transfers of stock occurring outside the State than on transfers involving a sale within the State” because “the
Commerce Clause limits the manner in which States may legitimately compete for interstate trade, for ‘in the
process of competition no State may discriminatorily tax the products manufactured or the business operations
performed in any other State.’” Bacchus, 468 U.S. at 272 (quoting Bos. Stock Exch. v. State Tax Comm’n, 429 U.S.
318, 337 (1977)). The Supreme Court has also “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” because “if Illinois were free to enact such legislation, others [sic] States
similarly were so empowered, ‘and interstate commerce in securities transactions generated by tender offers would
be thoroughly stifled.’” Healy, 491 U.S. at 333 n.9 (quoting Edgar v. MITE Corp., 457 U.S. 624, 642 (1982)).
Thus, because imposing durational-residency requirements on stockholders prevents shares from freely flowing
throughout states, a 51 % requirement still allows a state to engage in economic protectionism.
         Additionally, the dissent concludes that the ten-year requirement is the “epitome of arbitrariness” because
“[T]ennessee offered no reason why a person who has resided in the State for two years is deemed local enough to
begin operating a retailer in year 3, but not local enough to continue running it in year 4.” Dissent Op. at 33. But,
the dissent’s argument also applies to the two-year requirement because, as previously discussed, Tennessee has
offered no evidence to prove that the two-year requirement advances its goals. What makes two the magic number?
Why is one year not enough? What about a six-month requirement? Without answers to these questions, the two-
year requirement is also “the epitome of arbitrariness.” Furthermore, in Jelovsek, 545 F.3d at 438, this court already
determined that a two-year residency requirement is invalid.
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                  Page 24


               ______________________________________________________

                  CONCURRING IN PART AND DISSENTING IN PART
               ______________________________________________________

       SUTTON, Circuit Judge, concurring in part and dissenting in part. Tennessee requires
sellers of alcohol to have a retail license. To obtain a license, the applicant, including any
officers and directors, must be “a bona fide resident of th[e] state during the two-year period
immediately preceding” the application. Tenn. Code Ann. §§ 57-3-204(b)(2)(A), (b)(3)(A). The
licensing requirement applies to all sales of alcohol in the State, whether the alcohol was
produced in Tennessee or elsewhere. I would uphold these modest requirements, as the text of
the Twenty-first Amendment, the original understanding of that provision’s relationship to the
Commerce Clause, modern U.S. Supreme Court precedent, and a recent Eighth Circuit decision
(concerning a similar Missouri residency requirement) all support their validity. The majority
viewing it differently, I respectfully dissent from this part of its decision and agree with its other
conclusions.

       Constitutional text. The language of the pertinent constitutional provisions supports
Tennessee’s right to impose this requirement. At the outset, the U.S. Constitution gave Congress
power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the
Indian Tribes,” U.S. Const. art. I, § 8, cl. 3, and impliedly prohibited States from doing the same,
see Albert Abel, The Commerce Clause in the Constitutional Convention and in Contemporary
Comment, 25 Minn. L. Rev. 432, 485 (1941); 2 The Records of the Federal Convention of 1787,
at 625 (Max Farrand ed. 1966) (James Madison grew “more & more convinced” that the
regulation of commerce among the States “was in its nature indivisible and ought to be wholly
under one authority.”). Whatever else this Tennessee requirement does, it does not purport to
displace or contradict congressional regulation of commerce among the States.              It merely
announces a limited requirement for in-state sales of alcohol.

       The end of Prohibition in 1933 made the States’ authority over this issue more clear. In
repealing the Eighteenth Amendment, the Twenty-first Amendment allowed the States to
regulate alcohol as a unique commercial article.         Unlike any other provision in the U.S.
 No. 17-5552           Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                Page 25


Constitution, it sets up what is largely a regulatory regime of one: “The transportation or
importation into any State, Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const.
amend. XXI, § 2 (emphasis added). After 1933, then, a State could continue to prohibit sales of
alcohol within its territory. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939). Or it could allow
sales of alcohol on its own commercial terms, say by permitting only some types of alcohol to be
sold within the State or by permitting sales only through state-run retailers or by permitting sales
only through some other distribution system. The language of the amendment—prohibiting the
“delivery or use” of alcohol “in violation of the laws” of each State—empowers States to
regulate sales of alcohol within their borders. A two-year residency requirement to obtain a
license to own a brick-and-mortar retail store, like a two-year residency requirement to operate a
state-owned retail store, fits within the core authority delegated to the States by the Twenty-first
Amendment.

       History.     A few screen shots of history support this interpretation.        The itinerant
regulation of alcohol over time captures the itinerant relationship between the power of the
National Government and the States over time. Most areas of federal and state authority,
including over commerce, initially were deemed largely exclusive, as a review of the enumerated
powers delegated to Congress in Article I, Section 8 suggests. If Congress had authority over a
form of commerce, the States usually did not. So too in the other direction. See Gibbons v.
Ogden, 22 U.S. (9 Wheat.) 1, 187–89, 197–200 (1824); id. at 226–27 (Johnson, J., concurring);
see also Tyler Pipe Indus., Inc. v. Wash. State Dep’t of Revenue, 483 U.S. 232, 260 (1987)
(Scalia, J., concurring in part and dissenting in part) (“The pre-emption of state legislation would
automatically follow, of course, if the grant of power to Congress to regulate interstate
commerce were exclusive . . . as John Marshall at one point seemed to believe it was.”). Largely
exclusive spheres of authority, not largely overlapping spheres of authority, thus were the initial
order of the day.

       But the congressional sphere of authority grew over time, as more and more “commerce”
was treated as “among the several States.” Even before Prohibition in 1920, the definition of
interstate commerce had come to mean that the regulation of most products, including alcohol,
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n               Page 26


was increasingly a matter of state and federal law. See, e.g., Leisy v. Hardin, 135 U.S. 100, 121–
23 (1890). That helps to explain the federal laws concerning sales of alcohol before Prohibition.
Although the Supreme Court had held that the States could “regulat[e] and restrain[] the traffic”
in liquor, including by “prohibiting it altogether,” The License Cases, 46 U.S. (5 How.) 504, 577
(1847), it also held that they could not interfere with the liquor traffic “in the absence of
congressional permission to do so,” Leisy, 135 U.S. at 118, 124–25. Those rulings spawned a
series of congressional attempts to bolster state authority. See Wilson Act of 1890, 27 U.S.C.
§ 121; Webb-Kenyon Act of 1913, 27 U.S.C. § 122. They were largely unsuccessful. One
reason was that the Court held that the Commerce Clause prohibited a dry State from regulating
unopened packages of alcohol—even though destined for illegal consumption in the State—
because unopened packages remained articles of commerce. Rhodes v. Iowa, 170 U.S. 412, 426
(1898).

          This federal-state interplay also helps to explain the language of the Eighteenth
Amendment, which first established that “the manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, or the exportation thereof from the United States and
all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.” U.S.
Const. amend. XVIII, § 1. Section 2 of the Amendment then clarified overlapping federal and
state authority to enforce Prohibition:     “The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.”

          With the passage of the Twenty-first Amendment, the States and Federal Government
both had some regulatory power over alcohol but generally were thought to regulate it
exclusively in different ways. Compare Indianapolis Brewing Co. v. Liquor Control Comm’n,
305 U.S. 391, 394 (1939) (upholding Michigan statute prohibiting the sale of out-of-state beer
against Commerce Clause challenge), with William Jameson Co., Inc. v. Morgenthau, 307 U.S.
171, 172–73 (1939) (per curiam) (upholding Federal Alcohol Administration Act’s labeling
requirements against Twenty-first Amendment challenge). From the vista of 1933, a lawyer (and
judge) would have presumed that the regulation of sales of alcohol within the State (such as a
residency requirement for ownership of a retail liquor store) would be an exclusive state power
given the existing paradigm of largely separate and exclusive spheres of regulatory power.
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n             Page 27


       But over the next ten years, the Court’s understanding of the Commerce Clause power
changed. By the early 1940s, it was no longer true that regulations of commerce in the main
were exclusively federal or exclusively state. The growth of the national commerce power,
through the development of the “substantial effects” test, Wickard v. Filburn, 317 U.S. 111, 128–
29 (1942), eliminated many (but not all) distinctions between intrastate and interstate commerce,
making most businesses potentially subject to state and national regulation. The question was no
longer “whether the right government was acting within the right sphere.” Am. Beverage Ass’n
v. Snyder, 735 F.3d 362, 377 (6th Cir. 2013) (Sutton, J., concurring) (quoting Ernest A. Young,
“The Ordinary Diet of the Law”: The Presumption Against Preemption in the Roberts Court,
2011 Sup. Ct. Rev. 253, 257).

       That development altered the nature of the implied restrictions on state authority
established by the Commerce Clause. An exclusive delegation of power to one sovereign
implies a ban on assertions of power by another sovereign over the same matter. Just as
Congress’s exclusive power to “coin Money” implied a lack of state authority to do the same,
U.S. Const. art. I, § 8, cl. 5, Congress’s exclusive power to regulate interstate commerce among
the States implied a lack of state power in the area. See Smith v. Turner, 48 U.S. (7 How.) 283,
393–96 (1849) (McLean, J.); The Federalist No. 42, at 263 (James Madison) (Clinton Rossiter
ed. 2003); but see Tyler Pipe, 483 U.S. at 261 (Scalia, J., concurring in part and dissenting in
part). Hence the need for the Court to create implied/negative/dormant Commerce Clause
limitations on state authority, which was the only way to preserve the Federal Government’s
largely exclusive regulatory power over interstate commerce.

       At their creation, the Court’s dormant Commerce Clause cases were not just appropriate
but necessary, as they provided the only way to keep the States on the one hand and Congress on
the other in their separate and exclusive spheres of regulatory authority. But in a post-1930s
world, in which the National Government and States largely have overlapping power over most
sectors of commerce, the implementation of an implied restriction on state authority is much
more difficult to articulate and police.

       Which is what makes this case interesting—and complicated. From the vantage point of
the understanding of the Commerce Clause circa 1933, the case looks easy. That’s why Justice
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                   Page 28


Brandeis in 1936 would describe the States’ authority to regulate sales of alcohol in such
sweeping terms:

       The words used [in § 2] are apt to confer upon the State the power to forbid all
       importations which do not comply with the conditions which it prescribes. The
       plaintiffs ask us to limit this broad command. They request us to construe the
       Amendment as saying, in effect: The State may prohibit the importation of
       intoxicating liquors provided it prohibits the manufacture and sale within its
       borders; but if it permits such manufacture and sale, it must let imported liquors
       compete with the domestic on equal terms. To say that, would involve not a
       construction of the Amendment, but a rewriting of it.

State Bd. of Equalization v. Young’s Mkt. Co., 299 U.S. 59, 62 (1936). In the Court’s view at
that point, the Twenty-first Amendment gave the States what looked like largely plenary
commercial authority (save for violations of individual rights guarantees, such as the Fourteenth
Amendment) to regulate sales of alcohol within their borders, including in ways that the
Commerce Clause would not otherwise allow. Id.

       The congressional stance on regulation of alcohol at the time suggests a similar
understanding.    In the immediate aftermath of the Twenty-first Amendment’s ratification,
Congress overhauled Title 27 of the U.S. Code—“Intoxicating Liquors”—by repealing Chapters
1, 2, 4, 5, and 9 (dealing with production, transportation, and sale of liquor). 27 U.S.C. §§ 1–
108, 221–28. Chapter 6, which includes the Wilson Act of 1890 (§ 121), Webb-Kenyon Act of
1913 (§ 122), and, many years later, the Twenty-first Amendment Enforcement Act of 2000
(§ 122a), all bolster state authority over alcohol. See, e.g., id. § 122a(b)–(c) (authorizing state
Attorneys General to bring civil actions in federal court to enjoin “any act that would constitute a
violation of a State law regulating the importation or transportation of any intoxicating liquor”).
Chapter 8, the last enclave of federal oversight, concerns things like labeling. Federal Alcohol
Administration Act, 27 U.S.C. §§ 201 et seq.                But it leaves “transportation [and]
importation . . . for delivery or use” (i.e., distribution) to the States, U.S. Const. amend. XXI, § 2,
and even incorporates state-law requirements, like Tennessee’s two-year residency rule for
officers and directors, see 27 U.S.C. §§ 204(a)(2)(C), 204(d), 208(b)(2).

       At the time the Twenty-first Amendment was ratified, a State’s greater authority to ban
all alcohol sales in the State included a lesser authority to regulate sales of alcohol in the State
 No. 17-5552           Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n               Page 29


with a heavy hand. Ziffrin, 308 U.S. at 138. Another way of putting it is this: The existence of
the Commerce Clause and the Twenty-first Amendment makes it more difficult to imply a
restriction on state authority (to regulate commerce) expressly created in another constitutional
provision (to regulate retail sales of alcohol).

        Modern U.S. Supreme Court precedent. The Court’s more recent decisions in this area
should be read against this backdrop, and are easier to follow (to my mind) in that context. Even
if the meaning of the relevant constitutional provisions has migrated over the years, perhaps to
account for the continued integration of domestic and international commerce, today’s
precedents still give the States authority to impose residency requirements on the owners of retail
establishments that sell beer, wine, or liquor.

        A consensus remains that the Twenty-first Amendment “created an exception to the
normal operation of the Commerce Clause.” Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,
712 (1984). While the size of that exception may be fickle, a few constant rules remain. On one
side of the ledger, the Commerce Clause still limits state efforts to regulate activity outside of a
State’s territorial domain. See, e.g., Healy v. Beer Inst., 491 U.S. 324, 343 (1989) (invalidating
price-affirmation statute regulating liquor sales in other States); Bacchus Imps., Ltd. v. Dias,
468 U.S. 263, 273, 276 (1984) (invalidating discriminatory tax on out-of-state liquor); Capital
Cities, 467 U.S. at 714 (invalidating ban on TV wine ads emanating from other States); Cal.
Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 114 (1980) (invalidating
resale price maintenance and price posting statutes); Hostetter v. Idlewild Bon Voyage Liquor
Corp., 377 U.S. 324, 331–32 (1964) (invalidating regulation of alcohol passing through JFK
Airport that would not be used until arrival at international destination); Collins v. Yosemite Park
& Curry Co., 304 U.S. 518, 533–34 (1938) (invalidating state restriction on shipments to a
federal enclave in its borders).

        On the other side of the ledger, exceptions to the normal operation of the Commerce
Clause remain alive and well in some areas—in particular the in-state nature of alcohol
distribution. The States retain “virtually complete control” over “how to structure the[ir] liquor
distribution system[s].” Granholm v. Heald, 544 U.S. 460, 488 (2005). All thus agree that the
States retain authority (1) to ban alcohol completely, (2) to distribute liquor exclusively through
 No. 17-5552           Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                    Page 30


state-run monopolies, or (3) to operate distribution systems, including through regulations that
require retailers and wholesalers to reside in-state. Id. at 489. Because liquor distribution
implicates the States’ core interests after the repeal of Prohibition, such regulations are generally
“protected under [§ 2] when they treat liquor produced out of state the same as its domestic
equivalent.” Id. State authority in this area is “virtually” limitless, at least when it comes to the
Commerce Clause.        Id. at 488.     State regulations of in-state distribution, even if facially
discriminatory, are constitutional unless a challenger can show that they serve no purpose
besides “economic protectionism.” Bacchus, 468 U.S. at 276.

        Measured by these standards and cases, Tennessee’s two-year residency requirement
should survive.     We must start with the assumption that tiered distribution systems are
“unquestionably legitimate.” Granholm, 544 U.S. at 489. As part of these systems, the States
may require retailers and wholesalers to reside within their borders. See id. And if the States
may do that, they must “have flexibility to define the requisite degree of ‘in-state’ presence”
necessary for participating as a retailer or wholesaler. S. Wine & Spirits v. Div. of Alcohol &
Tobacco Control, 731 F.3d 799, 810 (8th Cir. 2013). Tennessee’s two-year residency rule and
its application of that rule to a retailer’s officers and directors lawfully exercise that authority.

        Promoting responsible consumption and orderly liquor markets “fall within the core of
[Tennessee’s] power” under § 2. North Dakota v. United States, 495 U.S. 423, 432 (1990).
Retailers are critical to serving those interests.       Because they form the final link in the
distribution chain, retailers are closest to the local risks that come with selling alcohol, such as
“drunk driving, domestic abuse, [and] underage drinking.” S. Wine & Spirits, 731 F.3d at 811.
Tennessee reasonably concluded that requiring retailers to reside in the communities that they
serve would further “health, safety and welfare.”              Tenn. Code Ann. § 57-3-204(b)(4).
Tennessee’s method for establishing in-state residency also makes sense. Requiring individual
retailers to reside in one place for a sustained, two-year period ensures that they will be
knowledgeable about the community’s needs and committed to its welfare. The only way to
know a community is to live there, which may explain why Congress requires federal court of
appeals judges to live within their circuits, 28 U.S.C. § 44(c), and district court judges to live
within their districts, id. § 134(b).
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                   Page 31


       The same is true with respect to a residency requirement for officers and directors of the
retailer. It ensures that they are familiar with the community and in a position to alter or
influence the retailer’s behavior based on that understanding. See Tenn. Code Ann. §§ 48-18-
101(b), 301(b)(1), 402, 403(b)(1).      The Federal Alcohol Administration Act, notably, also
regulates officers and directors of liquor companies. See, e.g., 27 U.S.C. § 208.

       Court of appeals precedents. The post-Granholm circuit precedents likewise support this
conclusion. Several courts agree that Granholm drew a line between regulation of (out-of-state)
producers and regulation of (in-state) wholesalers and retailers, requiring rigorous review of the
former and deferential review of the latter. See Freeman v. Corzine, 629 F.3d 146, 158 (3d Cir.
2010); Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185, 189 (2d Cir. 2009); Brooks v. Vassar,
462 F.3d 341, 352 (4th Cir. 2006); cf. Cooper v. Tex. Alcoholic Beverage Comm’n (Cooper II),
820 F.3d 730, 743 (5th Cir. 2016) (dormant Commerce Clause applies “to a lesser extent when
the regulations concern the retailer or wholesaler tier as distinguished from the producer tier”).

       One circuit has approved requirements nearly identical to Tennessee’s. In a thoughtful
opinion by Judge Colloton, the Eighth Circuit upheld a three-year residency requirement in
Missouri for wholesalers’ officers, directors, and 60% of their stockholders. S. Wine & Spirits,
731 F.3d at 802–03. We should do the same for Tennessee’s two-year requirement.

       Jelovsek v. Bredesen, 545 F.3d 431 (6th Cir. 2008), does not change things. That case,
it is true, invalidated a law that “requir[ed] a two-year Tennessee residency.” Id. at 438. But
the requirement applied only to wine production. See Grape and Wine Law, Tenn. Code Ann.
§ 57-3-207 (regulating “winer[ies]” and “farm wine producer[s]”). It thus did not “treat liquor
produced out of state the same as its domestic equivalent.”            Granholm, 544 U.S. at 489
(emphasis added). State laws that do treat out-of-state products the same, like Tennessee’s retail
residency rules, are generally “protected under the Twenty-first Amendment.” Id.

       Isn’t it still true that the requirements here are “discriminatory on their face,” just like the
ones in Jelovsek? But in-state distribution regulations in one sense always discriminate against
out-of-state interests, as Granholm illustrates. See 544 U.S. at 466, 489; id. at 517–19, 521–22
(Thomas, J., dissenting). At the same time, however, such regulations may serve a State’s core
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                  Page 32


concerns under the Twenty-first Amendment—for instance, by reducing in-state supply,
increasing the price of liquor, or even regulating it in a way that increases (or limits decreases in)
the price of liquor. Cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504–05 (1996).
It thus does not matter whether an in-state distribution regulation discriminates against out-of-
state interests. What matters is what type of discrimination is permissible. This one is, and
Jelovsek says nothing about that question.

       The Fifth Circuit, I acknowledge, refused to enforce a residency requirement for holders
of a “mixed beverage permit” and 51% of their stockholders. Cooper II, 820 F.3d at 734–35; see
Tex. Alcoholic Bev. Code Ann. § 28.01. In Cooper II, the Texas Package Stores Association
asked the court to grant relief from a twenty-five-year-old injunction that allowed a Texas strip
club to retain its permit after it was acquired by owners living in Florida and Tennessee. See
Fed. R. Civ. P. 60(b)(5). The Fifth Circuit denied relief because Granholm did not effect
“a significant change in decisional law.” Cooper II, 820 F.3d at 740–41.

       Putting this unusual posture to the side, the Fifth Circuit appears to have misread
Granholm when it concluded that “[d]istinctions between in-state and out-of-state retailers and
wholesalers are permissible only if they are an inherent aspect of” a State’s distribution system.
Id. at 743. Because “[t]here is no archetypal three-tier system from which [to glean] the
‘integral’ or ‘inherent’ elements,” the Fifth Circuit’s test creates the risk that a court will
unnecessarily substitute its own judgment for that of a state legislature about the best policies for
regulating liquor. S. Wine & Spirits, 731 F.3d at 810. Granholm did more than authorize States
to maintain some sort of liquor distribution system; it gave them “virtually complete control”
over “how to structure th[at] . . . system.” Granholm, 544 U.S. at 488. It matters not that one
can imagine other ways a distribution system could function because “[t]here is no narrow
tailoring requirement under the Twenty-first Amendment.” S. Wine & Spirits, 731 F.3d at 812.

       I agree with my colleagues, however, that two aspects of Tennessee’s scheme must fall:
its application of the residency requirement to 100% of a retailer’s stockholders, Tenn. Code
Ann. § 57-3-204(b)(3)(A), (B), (D), and its imposition of a ten-year residency requirement for
renewal of a license, id. § 57-3-204(b)(2)(A).
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n                  Page 33


       A requirement that every stockholder reside in Tennessee does not further the State’s
interest in responsible retailers. Tennessee’s Business Corporations Act states that company
management—directors and officers—shall exercise “[a]ll corporate powers.” Id. §§ 48-18-
101(b), 402; see also id. § 48-18-101(c). While stockholders still may exert influence over their
agents, 51% of the stockholders—not 100%—is usually all it takes to do so. Unlike Missouri,
Tennessee did not focus on closely held corporations or require a simple- or super-majority of
stockholders to be residents. See S. Wine & Spirits, 731 F.3d at 802–03 (citing Mo. Rev. Stat.
§ 311.060.3). I see no way to explain this all-or-nothing-at-all stockholder requirement as doing
anything other than promoting economic protectionism.

       The same goes for Tennessee’s residency rule for renewal of a license.               Although
Tennessee grants an initial retail license after two years of in-state residence, it grants renewal of
that very license only after ten years of residence. Tenn. Code Ann. § 57-3-204(b)(2)(A).
Tennessee offered no reason why a person who has resided in the State for two years is deemed
local enough to begin operating a retailer in year 3, but not local enough to continue running it in
year 4. Even that might not have been a problem if initial licenses lasted for ten years. But the
retail license “expire[s] twelve (12) months following the date of its issuance.” Id. § 57-3-
213(a). That is the epitome of arbitrariness.

       The court offers two key responses to my conclusion that Tennessee’s two-year residency
requirement for alcohol retailers does not violate the Constitution.         One involves history.
The court is right that Granholm “conducted an extensive historical analysis.” Supra at 5 n.2.
My point is that Granholm focused on the history in the run-up to Prohibition and concluded
that, by constitutionalizing the Wilson and Webb-Kenyon Acts, the Twenty-first Amendment
incorporated a pre-existing anti-discrimination principle. See 544 U.S. at 476–86. That’s why
the Court distanced itself from the sweeping language in Young’s Market. But that principle
concerned discrimination against out-of-state products.        See Wilson Act, 27 U.S.C. § 121
(making all imported liquors “subject to the operation and effect of the laws of such State . . . to
the same extent and in the same manner as though such . . . liquors had been produced in such
State”); Granholm, 544 U.S. at 483–84 (“The Wilson Act reaffirmed, and the Webb-Kenyon Act
did not displace, the Court’s line of Commerce Clause cases striking down state laws that
 No. 17-5552          Byrd, et al. v. Tenn. Wine & Spirits Retailers Ass’n              Page 34


discriminated against liquor produced out of state.”); id. at 486 (“[T]he Twenty-first
Amendment . . . does not displace the rule that States may not give a discriminatory preference to
their own producers.”) (emphases added). It is that history that was at issue in Granholm. Even
if we can no longer read Young’s Market for all it is worth, the Court never purported to overrule
its other decisions and holdings approving state authority over alcohol distribution as opposed to
production.

       The court’s second response is of a piece—to focus on language from Granholm (in truth
one sentence from Granholm) to suggest that traditional dormant Commerce Clause principles
apply in full to liquor production and distribution, notwithstanding the Twenty-first Amendment.
See supra at 5 n.2, 11 & n.5, 14 n.7 (quoting 544 U.S. at 487). That cuts to the heart of the
debate: Did Granholm mean to treat alcohol, including distribution of alcohol, like any other
commodity when it comes to the Commerce Clause? If so, the court is right. But as I see it, the
text of the Twenty-first Amendment, the history of alcohol regulation in this country, Supreme
Court and circuit court precedent, and Granholm itself all point in the other direction. Until the
Supreme Court says so, we may not assume that the Twenty-first Amendment no longer
“create[s] an exception to the normal operation of the Commerce Clause.” Capital Cities, 467
U.S. at 712. “An extension of this sort is not for us to make.” Arnold’s Wines, 571 F.3d at 201
(Calabresi, J., concurring).

       For these reasons, I respectfully concur in part and dissent in part.
