Whether a state law that has the predominant effect of protecting in-state retailers from out-of-state competition is immune from constitutional scrutiny just because it does not facially distinguish between in-state and out-of-state businesses of the same form

QUESTION PRESENTED Just this past Term, this Court “reiterate[d] that the Commerce Clause by its own force restricts state protectionism” and that a state law violates that constitutional constraint if its “predominant effect ... is simply to protect” in-state retailers “from out-ofstate competition.” Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2461, 2476 (2019). In this case, the district court found as a matter of fact that a Texas law that bans public corporations from obtaining a license to own a retail liquor store has exactly that effect. Indeed, as a direct result of that law, 98% of liquor stores in Texas are wholly owned by Texans. Yet the Fifth Circuit nonetheless held that the law does not have a discriminatory effect on interstate commerce. It did not do so because it disputed the district court’s factual findings about the law’s real-world effects. It did so because, in its view, this Court’s decision in Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978), compels the conclusion that a facially neutral regulation based on “corporate form” does not have a discriminatory effect as a matter of law, even if it “create[s] an obvious and significant barrier against out-of-state economic actors.” App.52 n.11. The question presented is: Whether a state law that has the predominant effect of protecting in-state retailers from out-of-state competition is immune from constitutional scrutiny just because it does not facially distinguish between in-state and out-of-state businesses of the same form.