Proposed Legislation to Restrict the Sales of

Alcoholic Beverages in Interstate Commerce

Proposed legislation to prohibit the sale in interstate commerce of alcohol to persons under the 

age of 21 is a valid exercise o f Congress’ power under the Commerce Clause and consistent 

with the Twenty-First Amendment. The Twenty-First Amendment permits states to enact 

legislation more restrictive than would otherwise be permissible under the Commerce Clause; 

however, it does not deprive the federal government of any authority over alcohol under the 

Commerce Clause.

The proposed legislation would not be “in violation” of more permissive state laws. Even if it 

were read to be “in violation” of such laws, a court would likely find that the federal interest 

in preventing damage to national commerce outweighed any particular state’s interest in 

permitting access to liquor for persons under age 21.

April 16, 1984

M e m o r a n d u m O p i n i o n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l ,

O f f i c e o f L e g i s l a t i v e A f f a ir s

This responds to your request of January 20, 1984 for our views on H.R. 

3870, a bill to restrict the sales of alcoholic beverages in interstate commerce. 

Although Congress has not yet asked for the Department’s views on this bill, 

you have requested our opinion in view of the questions raised by opponents of 

the bill and the public debate over it.1 We have reviewed H.R. 3870 and believe 

that it is constitutional.

Section 1 of the bill contains congressional findings on the economic damage done by drunk drivers, the disproportionate number of accidents caused by 

drunk drivers who are under the age of 21, and the benefits to the public welfare 

that will result from restricting sales of alcohol to those over 21. Section 2 

prohibits the sale in interstate commerce of alcohol to those under 21:

No person may sell or offer to sell any alcoholic beverage to any 

individual who is under the age of twenty-one if the beverage is 

or has traveled in interstate commerce or if the sale or offer to 

sell is made in an establishment which is in or affects interstate 

commerce.

1 See W ash. Post, Feb. 9, 1984, at A12, col. 6; 70 A.B.A. J.18 (Apr. 1984). The Office of M anagement and 

Budget has recently asked for our views on this bill.

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Section 3 provides definitions; § 4, penalties; and § 5 authorizes civil actions 

by citizens against those who violate § 2 ? Section 6 permits the Secretary of 

Commerce to waive the application of § 2 in any state that has a law “effective 

in prohibiting the sale of liquor” to those under 21, and to cancel the waiver if 

the law is ineffective. Section 7 makes § 2 effective two years after passage of 

H .R .3870.

The constitutional question raised by H.R. 3870 is whether § 2 of the 

Twenty-First Amendment to the Constitution prohibits the federal government 

from exercising authority under the Commerce Clause, U.S. Const, art. I, § 8, 

cl. 3, that would otherwise clearly furnish a constitutional basis for enacting 

this legislation.3 Although the issue is not, because of its novelty, entirely free 

from doubt, we believe that the proposed legislation is constitutionally permissible.

The Twenty-First Amendment to the Constitution repealed the Eighteenth 

Amendment and the imposition of nationwide prohibition. U.S. Const, amend. 

XXI. Section 2 of the Amendment provides: “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.” The effect of § 2 is to permit states to enact legislation more 

restrictive than would otherwise be permissible under the Commerce Clause. 

See United States v. Frankfort Distilleries, Inc., 324 U.S. 293, 300 (1945) 

(Frankfurter, J., concurring); 76 Cong. Rec. 4141, 4143 (1933) (statement of 

Sen. Blaine). That is to say, the Twenty-First Amendment permits states to go 

beyond non-discriminatory regulation based on their police powers4 and enact 

discriminatory regulation.5 However, early arguments that § 2 entirely de2 As reported out by the Committee on Energy and Commerce o f the House o f Representatives, § 5 o f H.R. 

3870 would perm it any one to file civil suits to enjoin violations of § 2. The suits could be brought only in 

state court.

3 Given the phraseology o f § 2 of H.R. 3870, we have analyzed this bill under the Commerce Clause. We do 

not address the federal government’s pow er over alcohol arising under other portions of the Constitution, 

such as the Export-Im port Clause, see Department o f Revenue v. James Beam Corp., 377 U.S. 341 (1964), or 

the Fourteenth A m endm ent's requirement o f equal protection, see Craig v. Boren, 429 U S. 190 (1976).

4 For exam ple, prior to passage of th e Eighteenth Amendment, the Supreme Court rebuffed Commerce 

Clause challenges to several state statutes prohibiting entirely the sale or manufacture of alcohol. The Court 

held that the laws were valid exercises o f the states’ police power over local commerce even though their 

effects “may reach beyond the State by lessening the am ount of intoxicating liquors exported." Kidd v. 

Pearson, 128 U.S. 1, 22 (1888). Seealso Fosterv. Kansas, 112 U.S. 201, 206 (1884); Bartemeyer v. Iowa, 85 

U.S. 129, 133 (1873); The License Cases, 46 U.S. (5 H ow .) 504, 576-77 (1847) (Taney, C.J.).

5 Thus, state statutes that regulate the entry of alcohol in order to protect a state liquor monopoly. State

Board v. Young's Market Co., 299 U.S. 59 (1936), or to retaliate against other states’ discriminatory laws, 

Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391 (1939), have been upheld even though 

such legislation “would obviously have been unconstitutional” in the absence of the Twenty-First Amendment. State Board v. Young’s Market Co., 299 U.S. at 62. Prior to passage of the Eighteenth Amendment, 

sim ilar discrim inatory statutes barring the entry of alcohol into a state except under the auspices of the state 

liquor monopoly were struck down as an impermissible burden on interstate commerce. See, e.g., Vance v. 

W.A. Vandercook Co. (No. 1), 170 U.S. 438 (1898); Scott v. Donald. 165 U.S. 58 (1897). The legislative 

history o f § 2 indicates that it was passed, at least in part, to assure the “dry” states that they would be able to 

defend them selves against shipments o f alcohol into their states. 76 C ong. Rec. 4141 (1933).

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prived the federal government of any authority under the Commerce Clause over 

alcohol were quickly rejected. United States v. Frankfort Distilleries, Inc., 324 U.S. 

293,299 (1945); Jameson & Co. v. Morgenthau, 307 U.S. 171, 172-73 (1939).6

We believe that H.R. 3870 is constitutional for three reasons. First, we do not 

believe that H.R. 3870 violates the literal language of § 2 of the Twenty-First 

Amendment. Forbidding the sale of alcohol to those under 21 in a state that 

permits sales to those over, for example, the age of 18 is not “in violation of the 

laws” of the state. Id. It may replace a permissive state policy with a more 

restrictive federal statute, but it does so without literally violating a state 

statute.7 Thus, the ban on sale of alcohol to those under 21 raises questions 

under the Twenty-First Amendment only because some have assumed that 

broad federal deference to state action in this area is a matter of constitutional 

law rather than policy. Second, even assuming that H.R. 3870 were read to be 

“in violation” of a more permissive state law because the bill conflicts with the 

policy expressed by the state law, we believe that it would, under the balancing 

test articulated in the Supreme Court’s most recently decided case in this area, 

California Retail Liquor Dealers Ass 'n v. Midcal Aluminum, Inc., 445 U.S. 97, 

108 (1980) (Midcal), pass constitutional muster because the federal interests 

would outweigh any particular state’s interest.

M idcal involved a Sherman Act challenge to a California law governing 

wine pricing. In resolving whether the Sherman Act applied, the Supreme 

Court addressed the issue whether § 2 of the Twenty-First Amendment permitted California to countermand the congressional policy in favor of competition. 

The Court emphasized that § 2 and the Commerce Clause must be viewed as 

part of a whole. ‘“Like other provisions of the Constitution, 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. at 109 (quoting Hostetter v. Idlewild Liquor

Corp., 377 U.S. 324, 331-32 (1964)). The focus of the analysis should be a 

“pragmatic effort to harmonize state and federal powers” that gives proper 

respect to both Clauses:

6 Id Jameson & Co. v. Morgenthau, the Court said:

[T]he Federal Alcohol Administration Act was attacked upon the ground that the Twenty-First ■ 

Amendment to the Federal Constitution gives to the States complete and exclusive control over 

commerce in intoxicating liquors, unlimited by the commerce clause, and hence that Congress

has no longer authority to control the importation of these commodities into the United States.

We see no substance in this contention.

307 U.S. at 172-73; see also H anfv. United States. 235 F.2d 710 (8th Cir.), cert. denied, 352 U.S. 880 

(1956); Old Monastery Co. v. United States, 147 F 2 d 905 (4th Cir.), cert, denied, 326 U.S. 734 (1945); 

Jatros v. Bowles. 143 F.2d 453 (6th Cir. 1944); Arrow Distilleries, Inc. v. Alexander, 109 F.2d 397 (7th Cir), 

cert, denied, 310 U.S. 646 (1940)

7 Therefore, in states that do not forbid drinking under the age of 18, H R. 3870’s passage will not oust a 

more permissive state statute. The Fifth Circuit has read the Twenty-First Amendment as providing authority 

for permissive state alcohol laws to override more restrictive federal regulations, notwithstanding the 

Supremacy Clause. Cf. Castlewood Int'l Corp. v. Simon, 596 F.2d 638 (5th Cir. 1979), vacated, 446 U.S. 949

(1980), opinion reinstated on remand, 626 F.2d 1200 (5th Cir. 1980) (Florida law permitting sales at 

unlimited discount to retailers prevailed over Department of the Treasury regulation forbidding same; 

Florida's interest in regulating intrastate retailers greater than federal interest in uniform national regulations). See also Wine Indus, v. Miller. 609 F.2d 1167 (5th Cir. 1980); Washington Brewers Inst. v. United

States. 137 F.2d 964 (9th Cir.), cert, denied, 320 U.S. 776 (1943).

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[T]here is no bright line between federal and state powers over 

liquor. 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. Although States retain substantial discretion to establish other 

liquor regulations, those controls may be subject to the federal 

commerce power in appropriate situations. The competing state 

and federal interests can be reconciled only after careful scrutiny of those concerns in a “concrete case.”

Midcal, 445 U.S. at 110.8

The analysis of H.R. 3870 must begin, therefore, with an identification of the 

state and federal interests involved. States that already prohibit drinking by 

those under 21 have interests that coincide, at least presently, with the federal 

interests detailed in § 1 of H.R. 3870. The practical effect of the proposed bill 

would be to assist those states in enforcing their own laws by reducing the 

availability of alcohol in neighboring states that have more permissive laws.

On the other hand, states that have drinking ages lower than 21 have 

presumably made a legislative determination that drinking by those over, for 

example, the age of 18 is permissible. The interests of these states may be 

described as protecting their separate decisions to permit access to liquor to 

those over 18.9

The federal government’s interest is, we assume, the economic injuries and 

resultant allocation of resources flowing in interstate commerce caused by

8 In Midcal, the Court identified the federal interest as the “fam iliar and substantial” one o f a national policy 

favoring com petition. 445 U.S. at 110. The state's interest in the resale price maintenance statute had been 

identified by the C alifornia Supreme Court as twofold: promotion of temperance and orderly market 

conditions. Id. at 112. That same court had then found, however, that there was in fact little correlation 

betw een the statute and either temperance or orderly market conditions. The United States Supreme Court 

stated, in concluding that the federal interests outweighed state concerns. “[w]e have no basis for disagreeing 

with the view o f the C alifornia courts that the asserted state interests are less substantial than the national 

policy in favor o f com petition.” Id. at 113.

9 There may also be states, particularly those with a monopoly on liquor sales, that have an economic 

interest in prom oting sales to those over 18. To the extent that states advance an economic interest, however, 

it seem s reasonable to assume that the federal government can demonstrate that its economic interest in 

property and people probably outweighs whatever the particular state's individual interest is in revenue from 

potential sales. We do not believe that the exercise o f C ongress’ authority in this fashion under the Commerce 

Clause would be held to violate any state interest protected by the Tenth Amendment. The sale of alcohol by 

a state monopoly is not one o f the “integral government functions,” National League of Cities v. (Jsery, 426 

U.S. 833, 855 (1976), protected by that Amendment from federal interference. See Ohio v. Helvering, 292 

U.S. 360, 368-69 (1934); South Carolina v. United States, 199 U.S. 437, 463 (1905). Both Ohio and South

Carolina involved state challenges to federal taxes on the state liquor monopoly. The South Carolina Court 

held that the sale o f liquor by a state m onopoly “is o f a private nature” and not a governmental function whose 

taxation would “impede or embarrass a State in the discharge of its functions.” 199 U.S. at 463. This ruling 

was reaffirm ed in the Ohio case notwithstanding passage o f the Twenty-First Amendment:

A distinction is sought in the fact that after that case was decided the Eighteenth Amendment was 

passed, and thereby, it is contended, the traffic in intoxicating liquors ceased to be pnvate 

business, and then with the repeal o f the amendment assumed a status which enables a state to 

carry it on under the police power. The point seems to us altogether fanciful. The Eighteenth 

A m endm ent outlaw ed the traffic; but, certainly, it did not have the effect of converting what had 

alw ays been a private activity into a governmental function.

Ohio v. Helvering, 292 U.S. at 369.

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drunk drivers under the age of 21. H.R. 3870, § 1. The loss of life, the crippling 

of individuals, the loss to production because of time lost from work, and the 

property damage caused by accidents involving such drunk drivers will, we 

assume, be detailed in H.R. 3870’s legislative history.10 Using M idcal's balancing test, we believe that a court could find, assuming a sufficient legislative 

history, that the federal government’s interest in preventing damage to national 

commerce outweighed any particular state’s interest in permitting access to 

liquor for those under 21.

Finally and, we believe, importantly, given that § 2 of the Twenty-First 

Amendment was intended to assure that states would be able to enact restrictive 

legislation retaining prohibition on a local level, 76 Cong. Rec. 4140-41 

(1933), it would be anomalous if states could use § 2 to insist on permissive 

state laws that could frustrate federal efforts directed towards a limited form of 

temperance.

Conclusion

H.R. 3870 will not mandate importation of alcohol into any state in violation 

of its laws. Under the M idcal test, Congress could, we believe, articulate a 

federal interest that would outweigh a state’s interest in providing its citizens 

under the age of 21 access to alcohol. We therefore believe that H.R. 3870 will 

survive constitutional attack.

L a r r y L . S im m s 

Deputy Assistant Attorney General

Office of Legal Counsel

10 We assume that the statistical evidence will be more persuasive than that presented to the Supreme Court 

in Craig v. Boren, 429 U.S. 190 (1976), and rejected there as too tenuous. See id. at 200-04 (striking down 

state ban on sale of 3.2 percent beer to males between the ages of 18 and 21).