Chicago Wine C O. v. MIKE BRAUN, Governor of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2068
C HICAGO WINE C O., et al.,
Plaintiffs-Appellants,
v.
MIKE BRAUN, Governor of Indiana; T HEODORE R OKITA , Attor-
ney General of Indiana; and J ESSICA A LLEN, Chairwoman of
the Indiana Alcohol and Tobacco Commission,
Defendants-Appellees,
and
WINE AND SPIRITS D ISTRIBUTORS OF INDIANA ,
Intervening Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cv-02785-TWP-MG — Tanya Walton Pratt, Judge.
____________________
A RGUED D ECEMBER 10, 2021 — D ECIDED A UGUST 5, 2025
____________________

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2 No. 21-2068
Before EASTERBROOK and S CUDDER , Circuit Judges.*
P ER C URIAM. Before the court is a constitutional challenge
to provisions of Indiana law that prevent retailers of alcoholic
beverages located outside the State from shipping wine to In-
diana consumers. The Chicago Wine Company, an Illinois
wine retailer, brought suit against several Indiana officials,
contending that the regulatory scheme violates the Constitu-
tion by discriminating against interstate commerce.
The district court entered summary judgment for the state
officials, and Chicago Wine appeals.
We affirm on two different lines of reasoning. Attached to
this opinion are separate opinions in which Judges Easter-
brook and Scudder explain their views.
A FFIRMED
* Circuit Judge Kanne, a member of the panel at the time of argument,
died on June 16, 2022. This appeal is being decided by a quorum. 28 U.S.C.
§46(d).

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No. 21-2068 3
EASTERBROOK , Circuit Judge, concurring. Chicago Wine, a
retailer licensed to sell alcoholic beverages in Illinois, wants to
ship its inventory into Indiana too. Its first preference is to do
this by common carrier, which would enable it to achieve
statewide distribution. If that is not possible, Chicago Wine
contends, it should be allowed to use its own trucks, which
deliver in the Chicago area and could extend their service to
northwest Indiana. According to Chicago Wine and three oe-
nophiles who have joined its suit, the Commerce Clause of the
Constitution blocks Indiana’s restrictions. But the district
court granted summary judgment to Indiana (as I call the de-
fendants collectively). 532 F. Supp. 3d 702 (S.D. Ind. 2021).
The parties have devoted a lot of attention to the interac-
tion of the Dormant Commerce Clause with Section 2 of the
Twenty-First Amendment, which grants states regulatory
power over the importation of alcohol from other states. I
need not enter that debate. To simplify the analysis, I assume
without deciding that, after Tennessee Wine & Spirits Retailers
Association v. Thomas, 588 U.S. 504 (2019), and Granholm v.
Heald, 544 U.S. 460 (2005), all discrimination against out-of-
state suppliers is forbidden. The essential question turns out
to be whether Indiana discriminates. If not, Chicago Wine
lacks a good claim no matter what constitutional rules apply
to the interstate distribution of alcohol. (As far as I can see, the
Supreme Court has never held that Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970), requires or allows a federal court to re-
view the wisdom of a nondiscriminatory regulation of alco-
hol. Nondiscriminatory state laws may be enforced under §2
of the Twenty-First Amendment without further ado.)
I start with Chicago Wine’s preferred outcome: ability to
ship alcohol by common carrier. Its problem is that Indiana

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4 No. 21-2068
does not permit any retailer to deliver via common carrier. Re-
tailers licensed to sell alcoholic beverages may use their own
staff to deliver their wares but not hand off their products to
third parties. See Ind. Code §§ 7.1-3-10-4, 7.1-3-15-3, and 7.1-
5-11-1.5(a), which collectively authorize the issuance of per-
mits allowing the staff of any retail liquor store to deliver al-
cohol. Common carriers may be used to deliver alcoholic bev-
erages to licensed wholesalers but not retail customers. This
restriction on who may receive deliveries is an aspect of a
three-tier distribution system, a setup that the Supreme Court
deems valid. Tennessee Wine, 588 U.S. at 534–35 (dictum).
Indiana allows delivery to consumers via common carrier
by anyone with a “Direct Wine Seller’s Permit”, which is
available to any wine producer in the United States that holds
a federal license and is authorized to sell wine in its home
state. Ind. Code §7.1-3-26-7. The upshot is that any wine pro-
ducer (in or out of Indiana) can ship by common carrier to con-
sumers in Indiana, but that no retailer (in or out of Indiana)
may do so. This structure has been challenged and sustained
as nondiscriminatory. See Baude v. Heath, 538 F.3d 608 (7th
Cir. 2008); Lebamoff Enterprises, Inc. v. Huskey, 666 F.3d 455 (7th
Cir. 2012) (Lebamoff Indiana). None of the state statutes rele-
vant to the use of common carriers has changed materially
since Lebamoff Indiana, and I do not think that any change in
constitutional doctrine requires me to revisit those decisions.
Still, Chicago Wine insists, it should be allowed to send its
own employees to deliver wine in northwest Indiana, just as
any wine store in Hammond or Gary could do. Once again,
however, Chicago Wine can’t show that state law discrimi-
nates against businesses from other states. True, Indiana per-
mits sales and deliveries only by licensed retailers. Ind. Code

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No. 21-2068 5
§7.1-5-10-5(a). Indiana used to have a statute limiting retail
liquor licenses to persons who had lived there for five years,
but that law, which was inconsistent with Tennessee Wine, was
blocked by Indiana Fine Wines & Spirits, LLC v. Cook, 459 F.
Supp. 3d 1157 (S.D. Ind. 2020), and rescinded shortly after the
district court issued its opinion in this case. Ind. Code §7.1-3-
21-3 (repealed effective July 1, 2021). Chicago Wine today is
entitled to obtain a license if it meets the standards that apply
to citizens of Indiana. So although Indiana stated in the dis-
trict court that Chicago Wine could not open a retail store in
the state, that concession rested on a statute since repealed,
which removes the discrimination.
One obstacle Chicago Wine still would face is the require-
ment that it have premises in Indiana. Indiana apparently
does not have a statute to that effect, but it conceded in the
district court that its “licensing standards … include main-
taining a physical presence in Indiana.” The number of li-
censes available in any geographic area depends on that
area’s population. Ind. Code §7.1-3-22-3. So if northwest Indi-
ana is license-limited by this statute, Chicago Wine would
need to buy an existing dealer. If the area is not license-lim-
ited, it could rent a storefront and apply for a license. In either
event the physical-presence requirement is nondiscrimina-
tory. It applies equally to a citizen of Indiana.
Chicago Wine protests that it does not want to open an-
other retail location, which it deems needlessly expensive. It
wants to deliver from the stores it already operates in Illinois.
Again, however, Chicago Wine is treated just the same as a
Hoosier with a store in Indianapolis or Lafayette who wants
to make local deliveries in northwest Indiana. That person,
too, must open or buy a retail location in the northwest of the

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6 No. 21-2068
state in order to avoid uneconomically long delivery routes;
that retailer, no less than Chicago Wine, would prefer a
cheaper alternative. Likewise a citizen of Indiana living in
Hammond who wants to deliver wine would be burdened by
the need to open what seems an unnecessary retail store. But
state laws that impose costs equally on in-state and out-of-
state citizens and their businesses are nondiscriminatory for
the purpose of the Dormant Commerce Clause.
We held in Lebamoff Enterprises, Inc. v. Rauner, 909 F.3d 847
(7th Cir. 2018) (Lebamoff Illinois), that a challenge to an in-state-
physical-presence rule survived dismissal for failure to state
a claim, so the state had to show that its system was nondis-
criminatory. Indiana has done just that. Nothing in Lebamoff
Illinois prevents a state from receiving a favorable decision
once the demonstration has been made. Indeed, Lebamoff Illi-
nois implies that a state’s nondiscriminatory enforcement of a
three-tier distribution system satisfies the Constitution, as
Tennessee Wine confirms.
At least four other circuits have rejected arguments similar
to those of Chicago Wine. See Lebamoff Enterprises, Inc. v.
Whitmer, 956 F.3d 863 (6th Cir. 2020) (Lebamoff Michigan); Sar-
asota Wine Market, LLC v. Schmitt, 987 F.3d 1171 (8th Cir. 2021);
Day v. Henry, 129 F.4th 1197 (9th Cir. 2025); Jean-Paul Weg LLC
v. New Jersey Division of Alcoholic Beverage Control, 133 F.4th
227 (3d Cir. 2025). Although Block v. Canepa, 74 F.4th 400 (6th
Cir. 2023), concluded that the situation in Ohio may be differ-
ent from that in Michigan (covered in Lebamoff Michigan), re-
quiring more litigation, I am satisfied that Indiana’s rules are
not discriminatory.
To the extent that B-21 Wines, Inc. v. Bauer, 36 F.4th 214 (4th
Cir. 2022), finds a wine-delivery system to be discriminatory

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No. 21-2068 7
just because of a retail-premises requirement, and then sus-
tains it anyway despite Tennessee Wine, I am skeptical. After
Tennessee Wine a trans-border delivery rule that discriminates
against interstate commerce is forbidden. (Recall from page 3
how I am reading Tennessee Wine.) But for the reasons I have
explained, Indiana’s retail-premises requirement does not
discriminate by either the source of the beverages or the state
citizenship of the proprietor.

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8 No. 21-2068
SCUDDER , Circuit Judge, concurring in the judgment. The
Chicago Wine Company, a Chicago-based retailer of fine
wines, wants to sell its wares to consumers in Indiana. But In-
diana law prevents out-of-state wine retailers from shipping
wine into the State by common carrier as well as delivering it
to customers using their own trucks and employees. Joined
by several Indiana consumers, Chicago Wine brought suit
against the Governor of Indiana and other state officials. The
company claims that the State’s regulatory scheme violates
the Constitution by discriminating against interstate com-
merce.
The district court entered summary judgment for the state
officials, and Chicago Wine now appeals. Like Judge Easter-
brook, I too would affirm. I reach that conclusion by a differ-
ent path of reasoning, however.
I
A
A brief overview of Indiana’s statutory scheme helps to
frame Chicago Wine’s constitutional challenge. Like many
States, Indiana regulates the importation, distribution, and
consumption of alcohol, including wine, through a three-tier
system. The State issues different licenses—what the Indiana
Code calls “permits”—to producers, wholesalers, and retail-
ers of alcoholic beverages. As a general matter, producers may
sell only to licensed wholesalers. Wholesalers, in turn, may
purchase alcoholic beverages from producers and other
wholesalers, and then sell them to licensed retailers. Finally,
retailers may purchase alcoholic beverages from wholesalers
and sell them to consumers at retail locations and, subject to
certain conditions, through home delivery. The primary

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No. 21-2068 9
“purposes” of this system, the Indiana General Assembly has
declared, are to “protect the economic welfare, health, peace,
and morals of the people of this state,” “regulate and limit the
manufacture, sale, possession, and use of alcohol and alco-
holic beverages,” and “provide for the raising of revenue.”
Ind. Code § 7.1-1-1-1.
The State implements this three-tier system through a
complex series of alcohol regulations contained in the Indiana
Code. One provision makes it unlawful for anyone to
“ship … an alcoholic beverage directly to a person in Indiana
who does not hold a valid wholesaler permit.” Id. § 7.1-5-11-
1.5(a). Subject to a limited exception for specially permitted
domestic wine producers, all wine shipped into Indiana must
pass through licensed wholesalers. But this provision of Indi-
ana law does not expressly say whether retailers can use their
own employees and vehicles to self-deliver wine to customers
at their homes or businesses. (I refer to this as self-delivery to
distinguish it from shipping wine for delivery by a common
carrier—think FedEx, UPS, and the like.)
Another provision fills that gap. It bars any person from,
more broadly, “transport[ing], ship[ping], barter[ing],
giv[ing] away, exchang[ing], furnish[ing], or otherwise
handl[ing],” an alcoholic beverage in Indiana “for purpose of
sale” except as specifically authorized by the Code. Id. § 7.1-
5-10-5(a). Section 7.1-3-15-3(d) provides one such authoriza-
tion. It allows the holder of a wine dealer’s permit to “deliver
wine” to a customer’s residence or office so long as the deliv-
ery is “performed by the permit holder or an employee who
holds an employee permit.” But the State concedes that this
permit is available only to in-state retailers and thus not to
out-of-state retailers.

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10 No. 21-2068
Two observations stand out from this overview: First, In-
diana generally prohibits direct shipment of wine to Indiana
consumers by out-of-state and in-state retailers alike. Second,
licensed in-state retailers may self-deliver wine to Indiana
consumers, so long as they use their own, separately permit-
ted employees, but out-of-state retailers cannot.
B
Chicago Wine wants to sell and deliver wine to consumers
in Indiana. But it is unable to do so because the company is
not a permitted retailer in the State. Chicago Wine invoked 42
U.S.C. § 1983 and filed suit in federal court in Indianapolis,
alleging that Indiana’s restrictions discriminate against inter-
state commerce by imposing differential treatment on compa-
nies’ ability to sell products in Indiana based on their physical
presence in the State. See Dennis v. Higgins, 498 U.S. 439, 440
(1991) (holding that the Commerce Clause confers a right ac-
tionable under § 1983).
The district court entered summary judgment for the state
officials (and, by extension, for Indiana), concluding that the
scheme is not discriminatory and, in any event, reflects a valid
exercise of the State’s authority to regulate alcohol pursuant
to the Twenty-first Amendment. Chicago Wine now appeals.
We review the district court’s award of summary judg-
ment by taking a fresh look at the facts and law, drawing all
reasonable inferences from the record in favor of Chicago
Wine as the non-moving party. See Davis v. Rook, 107 F.4th
777, 780 (7th Cir. 2024).
II
“[T]his case turns on the accordion-like interplay of two
provisions of the United States Constitution.” Lebamoff Enters.

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No. 21-2068 11
Inc. v. Whitmer, 956 F.3d 863, 869 (6th Cir. 2020) (Lebamoff
Michigan). The first is the Commerce Clause. The Constitution
extends to Congress the power to “regulate Com-
merce … among the several States.” U.S. Const. art. I, § 8,
cl. 3. But the Supreme Court has long interpreted the Clause
to contain a “dormant” or “negative” component, which “pre-
vents the States from adopting protectionist measures and
thus preserves a national market for goods and services.”
Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 588 U.S. 504, 514
(2019). This restraint on state action applies “even when Con-
gress has failed to legislate on the subject.” Okla. Tax Comm'n
v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995). And a “finding
that state legislation constitutes ‘economic protectionism’
may be made on the basis of either discriminatory purpose or
discriminatory effect.” Bacchus Imports, Ltd. v. Dias, 468 U.S.
263, 270 (1984) (citations omitted).
In the typical case, our own Commerce Clause precedents
place state laws into one of three categories, depending on the
degree to which they affect interstate commerce. The first cat-
egory comprises “laws that expressly discriminate against in-
terstate commerce.” Regan v. City of Hammond, 934 F.3d 700,
703 (7th Cir. 2019). “Discrimination” in this context “means
differential treatment of in-state and out-of-state economic in-
terests that benefits the former and burdens the latter.” United
Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth.,
550 U.S. 330, 338 (2007) (quoting Or. Waste Sys., Inc. v. Dep’t of
Env’t Quality of State of Or., 511 U.S. 93, 99 (1994)). A state law
found to be discriminatory is “subject to a ‘virtually per se rule
of invalidity,’ which can only be overcome by a showing that
the State has no other means to advance a legitimate local pur-
pose.” Id. at 338–39 (quoting Philadelphia v. New Jersey, 437 U.S.
617, 624 (1978)).

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12 No. 21-2068
In the second category are laws that appear neutral on
their face but bear more heavily on interstate commerce than
on local commerce. See Regan, 934 F.3d at 703. A law falling
into this category is analyzed according to its effect: “‘[W]hen
the effect is powerful, acting as an embargo on interstate com-
merce without hindering intrastate sales,’ the law is treated as
the equivalent of a facially discriminatory statute.” Park Pet
Shop, Inc. v. City of Chicago, 872 F.3d 495, 501 (7th Cir. 2017)
(quoting Nat’l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d
1124, 1131 (7th Cir. 1995)). But “if the law regulates even-
handedly and only incidentally burdens interstate com-
merce,” then we examine it “under the balancing test set forth
in Pike v. Bruce Church, Inc. to determine whether it is ani-
mated by a legitimate public purpose and, if so, whether the
burden the law imposes on interstate commerce is excessive
in relation to that interest.” Regan, 934 F.3d at 703 (citing 397
U.S. 137, 142 (1970)).
In the third category come “laws that may have a mild ef-
fect on interstate commerce but in practice do not give local
firms any competitive advantage over firms located else-
where.” Id. We examine a law falling into this category “solely
to determine whether it has a rational basis.” Id.
But this three-category framework has less force where, as
here, a dormant Commerce Clause challenge involves state
alcohol regulations. In such cases, the Supreme Court has di-
rected “a different inquiry.” Tenn. Wine, 588 U.S. at 539. This
different approach gives effect to the second constitutional
provision implicated by Chicago Wine’s challenge: Section 2
of the Twenty-first Amendment. This provision provides that
“[t]he transportation or importation into any State … for de-
livery or use therein of intoxicating liquors, in violation of the

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No. 21-2068 13
laws thereof, is hereby prohibited.” U.S. Const. amend. XXI,
§ 2.
Section 2, the Supreme Court has emphasized, grants
States broad power over “whether to permit importation or
sale of liquor and how to structure the liquor distribution sys-
tem,” Granholm v. Heald, 544 U.S. 460, 488 (2005) (quoting Cal.
Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S.
97, 110 (1980)), while also “giv[ing] each State the authority to
address alcohol-related public health and safety issues in ac-
cordance with the preferences of its citizens,” Tenn. Wine, 588
U.S. at 539.
But § 2 does have its limits: the Amendment “does not li-
cense the States to adopt protectionist measures with no de-
monstrable connection” to state interests or “confer limitless
authority to regulate the alcohol trade.” Id. at 538–39. To po-
lice these boundaries operating at the interplay between the
Commerce Clause and the Twenty-first Amendment, the Su-
preme Court in Tennessee Wine adopted a two-step framework
for evaluating alcoholic beverage control laws challenged un-
der the dormant Commerce Clause.
We first ask whether the challenged regulation discrimi-
nates against interstate commerce. See id. at 539. If not, the in-
quiry (at least under current law) proceeds to Pike balancing.
More on this later. But if the law does discriminate, the in-
quiry shifts to whether “the challenged [regime] can be justi-
fied as a public health or safety measure or on some other le-
gitimate nonprotectionist ground.” Id. If the answer to this
second question is also yes, the regulation survives. But if the
“predominant effect of [the] law is protectionism, not the pro-
tection of public health or safety, it is not shielded by § 2.” Id.
at 539–40.

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14 No. 21-2068
III
With these principles established, the next step is to apply
them to the contested aspects of Indiana’s regulatory scheme,
beginning with the provisions governing a retailer’s ability to
self-deliver wine to consumers.
A
Indiana prohibits the sale or purchase of alcohol except as
permitted by the State’s Alcohol and Tobacco Code. See Ind.
Code § 7.1-5-10-5. The Code defines a “permit” as “a written
authorization issued by the [Indiana Alcohol and Tobacco
Commission] entitling its holder to manufacture, rectify, dis-
tribute, transport, sell, or otherwise deal in alcoholic bever-
ages.” Id. § 7.1-1-3-29(a). As relevant here, the Indiana General
Assembly has authorized a permit that allows certain—but
not all—wine retailers to self-deliver wine to consumers.
Section 7.1-3-15-1 empowers the Commission to issue a
“wine dealer’s permit,” which licenses a retailer to “sell wine
for consumption off the licensed premises,” id. § 7.1-3-15-3(a).
The holder of a wine dealer’s permit “may deliver wine” to a
customer’s “residence” or “office” so long as the delivery does
not occur by common carrier but instead is “performed by the
permit holder or an employee who holds an employee per-
mit.” Id. § 7.1-3-15-3(d); see also id. § 7.1-3-18-9(a)(4) (author-
izing the Commission to issue an “employee’s permit” allow-
ing the employee of a licensed wine dealer to deliver wine).
To obtain an employee permit, the State tells us, an em-
ployee must undergo training and testing on Indiana’s alco-
hol laws, including age determination and recognition of fake
IDs. And the deliveries must involve a direct, face-to-face en-
counter between the customer and a retailer’s licensed

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No. 21-2068 15
employee—requirements designed to verify both the con-
sumer’s age and sobriety.
B
Nothing about these observations suggests that Indiana’s
scheme discriminates against out-of-state wine interests. A re-
tailer who holds an Indiana wine dealer’s permit may self-de-
liver wine to consumers while a retailer who lacks such a per-
mit may not. On its face, then, the regime is neutral.
But evidence in the summary judgment record reveals a
different regulatory reality. Indiana acknowledged during
discovery that an out-of-state retailer like Chicago Wine can-
not acquire the permit necessary to engage in deliveries to In-
diana consumers. The Commission, Indiana explains, “is not
currently processing retailer permit applications from appli-
cants from out-of-state.” And “[a]ny application [for a per-
mit],” the State continues, “would need to meet Indiana’s li-
censing standards, which would include maintaining a phys-
ical presence in Indiana.” Leaving nothing to doubt, the State
underscored in its brief that “Indiana law authorizes retail
permits only for premises physically located in Indiana.”
An “in-state presence requirement” of this type runs con-
trary to the principle that “States cannot require an out-of-
state firm ‘to become a resident in order to compete on equal
terms.’” Granholm, 544 U.S. at 475 (quoting Halliburton Oil Well
Cementing Co. v. Reily, 373 U.S. 64, 72 (1963)). Indiana prohib-
its out-of-state retailers from acquiring the necessary permit
that would allow them to lawfully engage in the same activi-
ties—self-deliveries to Indiana consumers—as in-state retail-
ers. The regulatory scheme, in short, discriminates in its

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16 No. 21-2068
practical effect on retailers, operating as a complete ban on
self-deliveries of wine by out-of-state retailers.
C
The State and Judge Easterbrook offer a different perspec-
tive. They see Indiana’s regime as nondiscriminatory because,
in their view, it applies equally to in-state and out-of-state
businesses. When it comes to making local deliveries in, for
example, northwest Indiana, my colleague explains, Chicago
Wine is treated the same as a retailer with a store in Indianap-
olis: the out-of-state and in-state retailer each must open a re-
tail location in northwest Indiana to make self-delivery ser-
vices there economically feasible.
Fair enough on the economics. But whether each retailer
could turn a profit does not answer the legal question before
us. What matters is that the retail store in Indianapolis is le-
gally authorized to make self-deliveries in northwest Indiana,
whereas Chicago Wine would face criminal penalties for do-
ing so. See Ind. Code § 7.1-5-10-5(c). It is in that important way
that Indiana’s scheme treats them differently. See Lebamoff En-
ters., Inc. v. Rauner, 909 F.3d 847, 852 (7th Cir. 2018) (Lebamoff
Illinois) (finding discrimination where the regulatory scheme
“allow[ed] in-state retailers to obtain a license to ship their
products anywhere in the state” but “prohibit[ed] out-of-state
retailers from obtaining an analogous license”).
Remember, too, that the Supreme Court has told us that a
state law is “no less discriminatory” because in-state busi-
nesses “are also covered by [it.]” C&A Carbone, Inc. v. Town of
Clarkstown, 511 U.S. 383, 391 (1994); see also Dean Milk Co. v.
City of Madison, 340 U.S. 349, 354 n.4 (1951). The regulatory
scheme before us, like the ordinance in Carbone, provides a

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No. 21-2068 17
preference to “favored operator[s]” in Indiana—those with a
retail location in the State—and deprives out-of-state retailers
like Chicago Wine the opportunity to compete for wine sales
on the same terms. 511 U.S. at 390–91. Indeed, as in Carbone,
while the scheme “may not in explicit terms seek to regulate
interstate commerce, it does so nonetheless by its practical ef-
fect and design.” Id. at 394.
Even more on point, in Granholm the Supreme Court re-
jected the precise argument that the State presses here. There
the Court reviewed a licensing scheme that allowed out-of-
state wineries to ship wine directly to consumers only if they
opened an in-state branch office and warehouse. See
Granholm, 544 U.S. at 474–75. That regime, like Indiana’s, con-
ditioned the receipt of a license on a business having a physi-
cal presence in the State. See id. Yet the Justices had “no diffi-
culty” concluding that this in-state presence requirement dis-
criminated against interstate commerce and, from there, sub-
jected it to heightened scrutiny. See id. at 476.
D
Having found that Indiana’s differential treatment of in-
state and out-of-state retailers with respect to wine self-deliv-
eries is discriminatory, the next step is to determine whether
§ 2 of the Twenty-first Amendment justifies the discrimina-
tion.
Recall that, under Tennessee Wine, an alcohol regulation
that discriminates against interstate commerce may neverthe-
less be saved if it “can be justified as a public health or safety
measure or on some other legitimate nonprotectionist
ground.” 588 U.S. at 539. To demonstrate as much, the State
may not rely on “mere speculation” or “unsupported

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18 No. 21-2068
assertions” but, rather, must offer “concrete evidence” show-
ing that the main effect of the law is to address “the public
health and safety effects of alcohol use.” Id. at 538–39 (quoting
Granholm, 544 U.S. at 490, 492).
For its part, Indiana urges an altogether different analysis.
Where, as here, a challenged regulation is an “essential fea-
ture” of a State’s three-tiered system (separating producers,
wholesalers, and retailers of alcoholic beverages), Indiana
contends that the provision is “categorically authorized by
the Twenty-first Amendment.” Put another way, Indiana sees
the test from Tennessee Wine as appropriate only when the
State has created an exception or modification to the core
components of a three-tier system (like the ones at issue in
Granholm and Tennessee Wine themselves).
I cannot get there. While the Supreme Court reaffirmed in
Granholm that “the three-tier system itself is ‘unquestionably
legitimate,’” 544 U.S. at 489 (quoting North Dakota v. United
States, 495 U.S. 423, 432 (1990) (plurality opinion)), Tennessee
Wine later warned us to not “read[] far too much into
Granholm’s discussion of the three-tiered model.” 588 U.S. at
535. Section 2, the Court emphasized, does not “sanction[]
every discriminatory feature that a State may incorporate into
its three-tiered scheme” and “each variation must be judged
based on its own features.” Id.; see also Lebamoff Illinois, 909
F.3d at 855 (recognizing that there are “serious problems with
reading Granholm to protect against discrimination only in the
parts of the three-tier system that are not ‘inherent’ or ‘inte-
gral’ to its existence”).
It is necessary, then, to look at the specific regulation at
issue and the State’s evidentiary showing to support it. See,
e.g., Anvar v. Dwyer, 82 F.4th 1, 10–11 (1st Cir. 2023) (“[A]

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No. 21-2068 19
discriminatory aspect of a state’s version of the three-tier sys-
tem cannot be given a judicial seal of approval premised … on
the virtues of three-tier systems generally” but rather “must
be supported by ‘concrete evidence’ demonstrating that its
predominant effect advances the goals of the Twenty-first
Amendment and not merely the protection of in-state busi-
ness interests.” (quoting Tenn. Wine, 588 U.S. at 540)); Day v.
Henry, 129 F.4th 1197, 1212 (9th Cir. 2025) (Forrest, J., concur-
ring in part and dissenting in part) (concluding that a remand
is appropriate where “the district court bypassed the requisite
evidentiary weighing and relied on the regulations’ perceived
centrality to [the State]’s three-tier system”).
To be sure, other circuits have latched onto Tennessee
Wine’s observation that the durational-residency requirement
at issue was not an “essential feature of a three-tiered
scheme,” 588 U.S. at 535, and, from there, have bypassed any
weighing of the evidence upon concluding that a law is inte-
gral to the State’s regime. See, e.g., Sarasota Wine Mkt., LLC v.
Schmitt, 987 F.3d 1171, 1183–84 (8th Cir. 2021); B-21 Wines, Inc.
v. Bauer, 36 F.4th 214, 227–29 (4th Cir. 2022). But nowhere did
the Court in Tennessee Wine suggest it intended to create a
carve out to the requirement that States must produce “con-
crete evidence” that discriminatory regulations serve legiti-
mate interests. To the contrary, the Court took pains to pre-
vent “read[ing] far too much into Granholm’s discussion of the
three-tiered model.” Tenn. Wine, 588 U.S. at 535. So to my eye,
regardless of whether the physical-presence requirement is
“essential” to Indiana’s three-tier system, § 2 requires us to
determine whether it can be justified as a public health or
safety measure.

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20 No. 21-2068
Indiana asserts that its physical-presence requirement fur-
thers the State’s legitimate, non-protectionist interests in pro-
moting temperance, policing underage drinking, and ensur-
ing that its regulatory Commission can effectively enforce al-
cohol regulations against those who sell to consumers. The
district court agreed, relying on a sworn declaration from an
Indiana State Excise Police Sergeant Brian Stewart to conclude
that the challenged regime “helps advance the State’s inter-
ests in keeping alcohol out of the hands of minors, controlling
the quantity of alcohol in the State to curtail public health con-
cerns, and protecting against unsafe or counterfeit products.”
Chicago Wine Co. v. Holcomb, 532 F. Supp. 3d 702, 714 (S.D. Ind.
2021).
In my view, that declaration, taken with other evidence
the State brought forth at summary judgment, provides a suf-
ficient basis to conclude that the “challenged laws [are] rea-
sonably necessary to protect [Indiana’s] asserted interests,”
Tenn. Wine, 588 U.S. at 533.
Promoting Temperance. The Supreme Court has recognized
as “legitimate” a State’s interest in the promotion of “respon-
sible sales and consumption practices.” Id. at 542. And, on the
record before us, Indiana has demonstrated that requiring re-
tailers to establish a physical presence in the State promotes
temperance by controlling the amount of alcohol available for
sale to consumers.
Specifically, Indiana law limits the number of retailer per-
mits available in a given locality, see Ind. Code §§ 7.1-3-15-2,
7.1-3-22-3, -4, -5, and further restricts how much alcohol may
be purchased at one time, see, e.g., id. §§ 7.1-3-4-6(c), 7.1-3-9-
9(c), 7.1-5-10-20. The State also requires that a county’s alco-
holic beverage board approve every permit for local retailers.

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No. 21-2068 21
See id. §§ 7.1-3-19-3, -4, -11; see also id. § 7.1-2-4-1. Incorporat-
ing a role for local boards allows the people to have a voice in
the number of retail establishments selling alcohol in their
community.
But it is difficult to see how Indiana could preserve local
oversight or limits on the number of available permits in any
hypothetical process for an out-of-state retailer to obtain a
permit. Allowing out-of-state retailers without a physical
presence in Indiana to deliver wine and other alcoholic bev-
erages to Hoosiers would undermine these controls and in-
crease the availability of alcohol to individual consumers.
Ensuring Compliance with State Alcohol Laws. A physical-
presence requirement also furthers the State’s interest in en-
forcing its health and safety regulations against businesses
that sell alcohol to consumers. Indiana retailers must make
their premises available for inspection. By statute, an appli-
cant for an alcoholic beverage permit “consents” to “the en-
trance, inspection, and search by an enforcement officer, with-
out a warrant or other process, of [the] licensed premises and
vehicles to determine whether [the permittee] is complying
with the provisions of [the Alcohol and Tobacco Code].” Id.
§ 7.1-3-1-6. Indiana law enforcement authorities, including
the State Excise Police, use this authority routinely to inspect
and investigate retailers located in Indiana.
Indeed, Sergeant Stewart explained that the Excise Police
sets a goal of conducting an annual “permit visit” to at least
75% of alcoholic beverage retailers, with officers performing
these visits on a “fairly routine” basis. In 2019 alone, the Indi-
ana Excise Police conducted 13,103 permit visits. These in-
spections enable regulators to conduct underage buys, dis-
cover unsafe and counterfeit products, and ensure

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22 No. 21-2068
compliance with other regulations. The State illustrated the
point by supplying the district court with a declaration from
another Excise Police officer describing one inspection that re-
vealed a retailer had tampered with shipment labels and com-
mitted other violations consistent with an attempt to bootleg
alcoholic beverages.
When law enforcement discovers violations like these, the
State can suspend or revoke the retailer’s permit, cutting off
their ability to both buy alcohol from Indiana wholesalers and
to sell it to consumers. But the State’s ability to detect viola-
tions and enforce these laws lessens when it comes to out-of-
state retailers. Even if the regulators had jurisdiction to con-
duct inspections, audits, or sting operations on out-of-state
wine retailers’ premises, sending law enforcement to these lo-
cations around the country would not be feasible. Sergeant
Stewart, testifying as the State’s representative, see Fed. R.
Civ. P. 30(b)(6), explained in his deposition that the Excise Po-
lice would be “really restricted in [their] ability to travel out
of state and do those physical inspections.” Two of the State’s
retained experts expressed similar concerns in their reports,
explaining that issuing permits to out-of-state retailers would
impair Indiana regulators’ ability to conduct inspections.
One of these experts further described how Indiana lacks
enforcement tools to use against out-of-state retailers who vi-
olate State law. Hoosier retailers, Dr. William Kerr stated,
must abide by the three-tier system, including the require-
ment that retailers purchase alcohol products from a permit-
ted Indiana wholesaler. And Indiana wholesalers that con-
tinue to supply alcohol to an Indiana retailer with a sus-
pended license may face penalties themselves. So, by routing
the distribution of alcohol through the three-tier system, State

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No. 21-2068 23
regulators can block the flow of alcohol to Hoosier retailers.
But the State lacks the same ability to shut off supply to non-
compliant out-of-state retailers, who shoulder no requirement
to purchase alcohol from Indiana wholesalers.
Combating Underage Drinking. Similar enforcement diffi-
culties arise in connection with the State’s ability to prevent
alcohol sales to underage consumers. The Indiana Excise Po-
lice, Sergeant Stewart reported in his declaration, aims to con-
duct underage-buy investigations at 100% of retail locations
each year to ensure that retailers are not selling to minors. But
these inspections would be difficult to execute at out-of-state
retail locations. Even if the Excise Police could conduct under-
age-buy operations from retailers within the State at the point
where an alcoholic beverage is self-delivered to an Indiana
consumer at their home or office, evidence supplied by the
State makes clear the importance of inspecting brick-and-
mortar retail premises to its regulatory oversight.
States have “the authority to address alcohol-related pub-
lic health and safety issues in accordance with the preferences
of its citizens.” Tenn. Wine, 588 U.S. at 539. In my view, Indi-
ana’s physical-presence requirement finds adequate justifica-
tion as a public health and safety measure and, therefore, con-
stitutes a permissible exercise of the State’s authority under
§ 2 of the Twenty-first Amendment.
This analysis aligns with Supreme Court precedent. Nei-
ther Granholm nor Tennessee Wine addressed the validity of a
physical-presence requirement at the retail level. Granholm
considered a discriminatory exception to the three-tier system
for wine producers: two States allowed in-state wineries to
ship wine directly to consumers but prohibited out-of-state
wineries from doing the same. See 544 U.S. at 465–66. The

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24 No. 21-2068
States failed to provide evidence justifying the differential
treatment of the wine producers. See id. at 490–93. So the
Court found the differential treatment unconstitutional. See
id. at 493.
The challenged physical-presence requirement here, by
contrast, is a key element of Indiana’s three-tier system. And
at summary judgment the State came forward with evidence
to demonstrate it furthers Indiana’s legitimate interests in
health and safety.
So, too, for Tennessee Wine. The Court invalidated a two-
year durational residency requirement before an individual
could obtain a retail license to sell alcohol in the Volunteer
State. See Tenn. Wine, 588 U.S. at 510–11. But a physical-pres-
ence requirement has a much closer nexus to a State’s health
and safety interests. Indeed, as the Court recognized, a “2-
year residency requirement is not needed to enable the State
to maintain oversight over liquor store operators” because
“the stores at issue are physically located within the State.” Id.
at 541. “For that reason,” the Court explained, “the State can
monitor the stores’ operations through on-site inspections,
audits, and the like.” Id. The ability of law enforcement to con-
duct on-site inspections of retailers, in my view, distinguishes
and justifies Indiana’s physical-presence requirement.
My conclusion that the physical-presence requirement is a
valid exercise of the State’s authority to regulate alcohol pur-
suant to the Twenty-first Amendment also finds support in
the case law of other circuits. Every court of appeals to con-
front the issue has upheld physical-presence requirements of
this sort for retailers of alcoholic beverages. See Lebamoff Mich-
igan, 956 F.3d at 876 (Sixth Circuit upholding “the require-
ment that [a retailer] set up a store within the State—a

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No. 21-2068 25
physical presence requirement that the U.S. Supreme Court
and our court permit”); Sarasota Wine Mkt., 987 F.3d at 1182–
84 (Eighth Circuit rejecting challenge to State’s requirements
that licensed liquor retailers be residents of the State and have
a physical presence in the State); B-21 Wines, 36 F.4th at 216–
17 (Fourth Circuit upholding regime that “prohibits out-of-
state retailers—but not in-state retailers—from shipping wine
directly to consumers”); Jean-Paul Weg LLC v. Dir. of N.J. Div.
of Alcoholic Beverage Control, 133 F.4th 227, 236–67 (3d Cir.
2025) (Third Circuit concluding that only authorizing retailers
that have a physical presence in the State to ship wine to con-
sumers is “justified both on public health and safety grounds
and as an essential feature of [the State’s] three-tier system”);
Day, 129 F.4th at 1201, 1205–06 (Ninth Circuit finding regime
to be non-discriminatory where “retailers who do not main-
tain premises in [the State] cannot ship directly to consumers
within the state, but licensed retailers with in-state premises
may do so”); Arnold’s Wines, Inc. v. Boyle, 571 F.3d 185, 190–91
(2d Cir. 2009) (Second Circuit reaching the same conclusion);
cf. Anvar, 82 F.4th at 10–11 (First Circuit remanding to the dis-
trict court for “a fuller consideration of the parties’ respective
offers of proof” as to the “constitutionality of the in-state-
presence requirement for retailers”).
E
Chicago Wine insists that the State cannot carry its burden
because it has failed to demonstrate there are no nondiscrim-
inatory alternatives to the physical-presence requirement. As
a legal matter, it is not clear whether the framework applied
by the Supreme Court compels consideration of nondiscrimi-
natory alternatives in challenges to state alcohol regulations—
as would be required in a typical dormant Commerce Clause

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26 No. 21-2068
case. Compare Granholm, 544 U.S. at 492–93 (drawing upon
general dormant Commerce Clause precedent and explaining
that discriminatory regulations may be upheld “only after
finding, based on concrete record evidence, that a State’s non-
discriminatory alternatives will prove unworkable”), with
Tenn. Wine, 588 U.S. at 539–40 (asking “whether the chal-
lenged requirement can be justified as a public health or
safety measure or on some other legitimate nonprotectionist
ground”).
To be sure, Tennessee Wine does use language considering
alternatives. See id. at 540 (“[T]he record is devoid of any ‘con-
crete evidence’ showing that the 2-year residency require-
ment actually promotes public health or safety; nor is there
evidence that nondiscriminatory alternatives would be insuf-
ficient to further those interests.” (quoting Granholm, 544 U.S.
at 490)); id. at 542–43 (“Not only is the 2-year residency re-
quirement ill suited to promote responsible sales and con-
sumption practices … but there are obvious alternatives that
better serve that goal without discriminating against nonresi-
dents.”). But that language comes in connection with the
Court’s analysis of whether the State presented sufficient evi-
dence that the challenged regulation advances its interests in
public health and safety.
So while consideration of nondiscriminatory alternatives
may be relevant in some way to the Twenty-first Amendment
inquiry, it is far from clear, and definitely not settled, that the
legal inquiry demands a showing of no nondiscriminatory al-
ternatives. See Anvar, 82 F.4th at 11 (“The district court may
find the existence of alternatives relevant in assessing whether
the challenged laws in fact promote public health and safety,
but the mere existence of possible alternatives does not, for

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No. 21-2068 27
purposes of a Twenty-first Amendment inquiry, necessarily
invalidate a challenged law.”); B-21 Wines, 36 F.4th at 225–26
(“Although consideration of nondiscriminatory alternatives
could have some relevance to [the Twenty-first Amendment]
inquiry, it does not transform the applicable framework into
the test that ordinarily applies to a dormant Commerce
Clause challenge when the Twenty-first Amendment is not
implicated.”); Jean-Paul Weg, 133 F.4th at 238 (“[T]he relevance
of nondiscriminatory alternatives is of lessened importance
under the Tennessee Wine test than in a standard dormant
Commerce Clause analysis.”).
Even more, I doubt that the consideration of alternatives
has a material role to play after Tennessee Wine. To insist upon
the demonstration of no nondiscriminatory alternatives risks
limiting a State’s authority conferred by § 2 and, by extension,
puts alcoholic beverage regulations on the same plane as or-
dinary dormant Commerce Clause jurisprudence. But that is
precisely what the Court has taken to care to avoid by supply-
ing a “different inquiry” for such cases. Tenn. Wine, 588 U.S.
at 539.
Taking the State’s interests on their own terms, Chicago
Wine contends that a physical presence in Indiana is not es-
sential to advancing public health and safety because the State
issues direct seller’s permits to out-of-state domestic wineries,
authorizing them to ship wine directly to Indiana consumers.
See Ind. Code §§ 7.1-3-26-5(a), -7. Out-of-state wineries, the
argument goes, pose the same problems of long-distance reg-
ulation as out-of-state retailers. So requiring an in-state pres-
ence—to facilitate inspections and ensure compliance with al-
cohol laws—cannot be necessary for regulatory oversight.

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28 No. 21-2068
But the exception for wineries is far from unlimited. Win-
eries may only ship wine that they produce, see id. § 7.1-3-26-
9(2)(G), may not ship more than 45,000 liters of wine into In-
diana per year, see id. § 7.1-3-26-12, and may not ship more
than 216 liters of wine per year to any one Indiana consumer,
see id. §§ 7.1-3-26-9(2)(E), -14. Sergeant Stewart also explained
that all wineries are licensed and regulated by the Tax and
Trade Bureau of the U.S. Treasury Department, which sets na-
tional standards for health and safety that do not exist at the
retail level.
The State has further presented evidence that the products
offered for direct sale by wineries are not particularly attrac-
tive to minors. One of Indiana’s experts relied on a study find-
ing that the average bottle price for direct shipment of wine
was $40.70 in 2019. Minors, the expert opined, are not known
to be connoisseurs of fine wine and instead prefer to consume
cheaper alcohol primarily for intoxication. Indeed, as the Su-
preme Court observed, relying on a report by the Federal
Trade Commission, “direct shipping [of wine] is an imperfect
avenue of obtaining alcohol for minors who … want instant
gratification.” Granholm, 544 U.S. at 490 (internal quotation
marks omitted) (citation omitted).
Finally, it is worth observing that Indiana’s exception for
wineries is a narrow exception to the State’s three-tier system
at the producer level, allowing domestic wineries to bypass
wholesalers and retailers and sell wine directly to consumers.
But Indiana’s interest in requiring a physical presence is
strongest at the retail level, where the vast majority of alcohol
sales to Indiana consumers occur. Indeed, at summary judg-
ment the State explained that it has issued only 464 direct

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No. 21-2068 29
seller’s permits compared to the 8,764 in-state retailers it au-
thorizes to sell wine.
What all this tells us is that Indiana’s decision to allow out-
of-state wine producers to ship wine to consumers does not
materially undermine its interests served by requiring retail-
ers to maintain a physical presence in the State. And there is
further reason to believe that the limits on the supply, price,
and product type imposed by Indiana law and market forces
would give way where out-of-state wine retailers had direct
access to consumers—presenting a risk to public health and
safety that direct-shipment by wineries does not.
In the final analysis, then, the State’s legitimate, non-pro-
tectionist interests in promoting temperance, policing under-
age drinking, and enforcing its alcohol regulations against
those who sell to consumers combine to support Indiana’s
physical-presence requirement for retailers.
IV
That brings us to Chicago Wine’s second, independent
challenge to Indiana’s regulatory scheme—the prohibition on
retailers shipping wine to Hoosier consumers via common
carriers.
A
The parties agree that, aside from the exception afforded
to specially permitted domestic wineries, Indiana law forbids
the delivery of wine to Indiana consumers by a common car-
rier for in-state and out-of-state retailers alike. See Ind. Code
§§ 7.1-3-15-3(d), 7.1-5-10-5, 7.1-5-11-1.5(a); see also Lebamoff
Enters., Inc. v. Huskey, 666 F.3d 455, 457 (7th Cir. 2012) (Leba-
moff Indiana) (concluding that Indiana Code § 7.1-3-15-3(d)
forbids in-state retailers from shipping wine to consumers via

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30 No. 21-2068
common carrier); Ind. Alcohol & Tobacco Comm’n v. Lebamoff
Enters., Inc., 27 N.E.3d 802, 813–14 (Ind. Ct. App. 2015) (find-
ing our interpretation of § 7.1-3-15-3(d) in Lebamoff Indiana
“persuasive”).
Everyone further agrees that § 7.1-3-15-3(d), which au-
thorizes an Indiana wine retailer to self-deliver wine to con-
sumers, requires that the delivery be made by either the retail-
permit holder or their permitted employee. A delivery made
by UPS, then, is not sanctioned by that provision. And every-
one also acknowledges that the Code contains no other au-
thorization that would allow either an in-state or out-of-state
retailer to use a common carrier to deliver their wine to an
Indiana consumer.
B
Because all retailers are forbidden from using common
carriers to deliver wine, Indiana’s regime in this regard does
not explicitly discriminate against interstate commerce. To its
credit, Chicago Wine concedes that the common carrier ban is
“facially neutral” because it applies to both in-state and out-
of-state wine retailers. But Chicago Wine insists that the ban
nevertheless bears more heavily on interstate commerce be-
cause out-of-state retailers—also unable to self-deliver wine
using their employees—have no other way to get their vino to
market in Indiana.
When a law “regulates even-handedly and only inci-
dentally burdens interstate commerce, then it is examined un-
der the balancing test set forth in Pike v. Bruce Church, Inc.”
Regan, 934 F.3d at 703 (citing 397 U.S. at 142). “Under the Pike
test,” the Supreme Court has explained, we “uphold a non-
discriminatory statute like this one ‘unless the burden

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No. 21-2068 31
imposed on [interstate] commerce is clearly excessive in rela-
tion to the putative local benefits.’” United Haulers, 550 U.S. at
345–46 (alteration in original) (quoting 397 U.S. at 142) (apply-
ing the Pike test where the challenged county ordinances did
not “‘discriminate against interstate commerce’ for purposes
of the dormant Commerce Clause” because they “treat[ed] in-
state private business interests exactly the same as out-of-state
ones”).
One threshold question regarding the proper framework
to analyze Chicago Wine’s challenge to the common carrier
ban bears emphasis. In Lebamoff Indiana we acknowledged
that it is unclear whether Pike balancing has any “continued
applicability” in challenges to laws that fall “within the
Twenty-First Amendment’s gravitational field.” 666 F.3d at
462. The Supreme Court, one of my colleagues observed, has
“not used Pike balancing to strike down any state alcoholic
beverage laws,” nor has the Court “signaled that the lower
courts should apply Pike balancing to alcoholic beverage
laws.” Id. at 467 (Hamilton, J., concurring in the judgment).
Section 2, in my colleague’s view, should foreclose the Pike
test “when the state is exercising its core Twenty-first Amend-
ment power to regulate the transportation and importation of
alcoholic beverages for consumption in the state.” Id. at 462.
In time the Justices are sure to answer that question. For
deciding this case, however, we need not resolve whether Pike
has a role to play in determining whether a state alcohol reg-
ulation violates the dormant Commerce Clause. Assuming
the Pike test continues to apply in the domain of alcohol reg-
ulation, any burden the common carrier ban imposes on in-
terstate commerce is not excessive in relation to its benefits.

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32 No. 21-2068
Before turning to that analysis, however, allow me a word
in response to Indiana’s separate contention that any chal-
lenge to the prohibition on the use of common carriers is fore-
closed by our precedent. Judge Easterbrook agrees with the
State. See Op. J. Easterbrook at 3 (first citing Baude v. Heath,
538 F.3d 608 (7th Cir. 2008); and then citing Lebamoff Indiana,
666 F.3d 455). I do not.
Baude rejected a dormant Commerce Clause challenge to
an Indiana law that required consumers to visit a winery in
person (and supply proof of name, age, address, and phone
number) before the winery could ship wine to them. See 538
F.3d at 612, 615. But the Indiana General Assembly subse-
quently removed this aspect of the regulatory scheme by later
amendment, thereby eliminating any dormant Commerce
Clause infirmity. See Ind. Code §§ 7.1-3-26-6, -9 (as amended
by Pub. L. No. 107-2015, §§ 6, 9).
Lebamoff Indiana is a closer fit. There an Indiana wine re-
tailer based in Fort Wayne, joined by two wine consumers liv-
ing in Indianapolis, challenged the law barring the company
from shipping alcoholic beverages via common carrier. See
Lebamoff Indiana, 666 F.3d at 457. The retailer sought to enlarge
its sales area to parts of Indiana outside of Fort Wayne—like
Indianapolis—where it could not as easily self-deliver wine
using its own employees. See id. at 462. But that challenge, we
explained, concerned “an effect on intrastate commerce, not
interstate commerce.” Id. Without a showing of “even an inci-
dental effect on interstate commerce,” we found that the com-
mon carrier ban survived Pike balancing. See id. at 460–62. We
did not consider the ban as applied to interstate shipping,
however.

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No. 21-2068 33
Here, unlike in Lebamoff Indiana, the issue of whether the
common carrier ban has an impermissible, discriminatory ef-
fect on out-of-state business interests takes center stage. So
while Lebamoff Indiana’s reasoning is helpful, it does not re-
solve this case. We must instead take a fresh look at the com-
mon carrier ban under Pike balancing, this time considering
the effect of the restriction on interstate commerce.
C
Chicago Wine tells us that much of the wine sold in the
United States is available only from out-of-state retailers.
These retailers are unable to self-deliver wine to Indiana con-
sumers using their employees and, even if they could obtain
a permit to do so, many out-of-state retailers are located far
beyond Indiana’s borders. Indeed, while Chicago Wine sits
just across the Illinois state line, the company complains that
it would be cost-prohibitive to self-deliver wine to most Hoos-
iers. So the effect of the common carrier ban, the company
urges, disadvantages out-of-state retailers, who are effectively
boxed out of the Indiana wine market.
Analyzing the common carrier ban “on its own,” Tenn.
Wine, 588 U.S. at 539, the measure reflects a reasonable means
by which Indiana can prevent the distribution of alcohol to
minors—a legitimate state interest. The State, remember, al-
lows the holder of a wine dealer’s permit to “deliver wine” to
a customer’s residence or office so long as the delivery is “per-
formed by the permit holder or an employee who holds an
employee permit.” Ind. Code § 7.1-3-15-3(d). Delivery drivers
employed by retailers must be trained in, and tested on, Indi-
ana’s alcohol laws, including age determination and recogni-
tion of fake IDs. See Lebamoff Indiana, 666 F.3d at 458. As one

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34 No. 21-2068
of the State’s experts opined, effectively detecting fake IDs is
difficult and requires training.
“Motor carriers” like FedEx, UPS, and others, by contrast,
“are required to obtain ‘carriers’ alcoholic permits’ in order to
be allowed to transport alcohol on public highways in Indi-
ana, but their drivers are not required to obtain permits and
there is no training requirement either.” Id. at 459 (citing Ind.
Code §§ 7.1-3-18-1 et seq.). And, even if the State wanted to,
Indiana could not impose upon common carriers the require-
ments that it mandates for the employees of wine retailers.
“[W]e know from Rowe v. New Hampshire Motor Transport
Ass’n that states cannot require interstate carriers to verify the
recipients’ age.” Baude, 538 F.3d at 613 (emphasis added) (cit-
ing 552 U.S. 364 (2008)).
If Indiana cannot require common carriers to verify the
age of a consumer before handing them a package that con-
tains alcohol, then prohibiting retailers—both in-state and
out-of-state—from using common carriers is a reasonable
means by which the State can endeavor to keep alcohol out of
the hands of minors. As we explained in Lebamoff Indiana, the
State has decided that mandating “face-to-face age verifica-
tion by someone who has passed a state-certified training
course should reduce the prevalence of [underage] drinking,”
and “[a]llowing motor carriers to deliver wine could therefore
undermine the state’s efforts to prevent underage drinking.”
666 F.3d at 459.
Chicago Wine has not come forward with sufficient evi-
dence to demonstrate that the common carrier ban imposes
such a heavy burden on interstate commerce as to overcome
the State’s legitimate interest in combatting underage drink-
ing. See Baude, 538 F.3d at 612–13 (observing that the party

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No. 21-2068 35
challenging the regulation bears the burden under the Pike
test). Because any burden it poses is not “clearly excessive in
relation to the putative local benefits,” Pike, 397 U.S. at 142,
the common carrier ban, in my view, survives the Pike test.
This result sits comfortably alongside decisions reached
by other circuits. Several circuits have upheld state laws that
forbid only out-of-state retailers from shipping wine by com-
mon carrier while allowing in-state retailers to do so. See, e.g.,
Lebamoff Michigan, 956 F.3d at 867–68 (Sixth Circuit); B-21
Wines, 36 F.4th at 217, 229 (Fourth Circuit); Jean-Paul Weg, 133
F.4th at 231, 237 (Third Circuit); Day, 129 F.4th at 1201, 1208
(citing Ariz. Rev. Stat. § 4-203(J)) (Ninth Circuit). Indiana’s re-
striction, by contrast, regulates “on evenhanded terms,”
Granholm, 544 U.S. at 493, and therefore is all the more com-
patible with the strictures of the dormant Commerce Clause.
For these reasons, I concur in today’s judgment.

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