A story in the Pittsburgh Post-Gazette (and not, I swear, in The Onion) reveals that a bunch of Pennsylvania state legislators flew off to Cuba where they concocted this genius plan. Step 1: ship boatloads of rum from Cuba to state liquor stores in Pennsylvania without an OFAC license and in defiance of the embargo. Step 2: argue that Pennsylvania can simply ignore the embargo and import all the rum it wants for ever and ever because of Clause 2 of the Twenty-First Amendment to the U.S. Constitution. Seriously. (The esteemed University of Pennsylvania Law School is reportedly so embarrassed by the legal reasoning of its local legislators that it packed up in the middle of the night and relocated to the recently vacated Qualcomm Stadium in San Diego.)
If you just clicked on the above link to the Twenty-First Amendment, you are probably pretty confused as to how anyone, state senators included, could argue that this clause allows a state to import Cuban rum in violation of the Cuban embargo. After all, it reads:
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.
It seems clear from the language and the history of Clause 2 that it was designed to allow states, if they wanted, to remain dry and regulate the sale of liquor in their own states. Mississippi, bless its heart, stayed dry until 1966. Kansas prohibited public bars until 1987. (Useful trivia: the reason Dorothy said to Toto, after landing in Oz, that they weren’t in Kansas any more was because she saw a bar.)
The clause has been read to give states the right to regulate the importation of liquor from other states by imposing taxes that would otherwise violate the Commerce Clause. But the courts have pretty much stopped there, with Craig v. Boren holding that Clause 2 did not permit states to set different drinking ages for men and women and California Liquor Dealers v. Midcal Aluminum holding that Clause 2 did not override the federal Sherman Act.
All that being said, nothing in Clause 2 which allows states to restrict importation and sale of liquor to their hearts’ content also allows states to import liquor in violation of federal law. It says that imports prohibited by state law are prohibited, not that imports permitted by state law are permitted. Morever, even if it did, the embargo would still apply. If Clause 2 doesn’t trump the Sherman Act, it certainly doesn’t trump the Trading with the Enemy Act or Helms-Burton.
Moral of the story: legal theories concocted after long afternoons of daiquiris and mojitos in Havana will not likely survive judicial scrutiny.
Copyright © 2017 Clif Burns. All Rights Reserved. (No republication, syndication or use permitted without my consent.)