Mr. FLORIO. Thank you very much. STATEMENT OF GREGORY SULLIVAN Mr. SULLIVAN. I will make my remarks very succinct, Mr. Chairman, since you have our statements already, and introduce Jeff Paduano, who has joined me today and if he could make a brief statement at the conclusion of my remarks. Mr. FLORIO. Certainly. Mr. SULLIVAN. We as a student group in New York State share your concern for the problem of drinking and driving, the problem of overindulging in alcohol, and all the problems associated with alcohol abuse. We want you to know that we appreciate the sentiment that is behind this bill. What we would like to propose is the endorsement of the concept of a national drinking age. We don't have opposition to that. We think the concept is important and for the reasons you mentioned, for the reasons you mentioned in the first committee discussion on this and the reasons that were mentioned today-the problems between the borders of the States, the unnecessary loss of life, the people driving back long distances late at night after having gone over to another State to drink and take advantage of the lower drinking age. We think that is an important concept to uphold. The only thing we are concerned about is will the 21-year-old national drinking age address this problem? Just some of the questions we would like to raise from the standpoint of having experience on the college campuses-not speaking for all young adults but speaking for those people who are in a college environment. A lot of college campuses-we are speaking for one, for example, in Geneseo in New York State and many others-have extensive on-campus activities, social activities. These activities are carefully regulated by the student groups that organize the activities and also by the administration. There are restrictions on the consumption of alcohol. There is supervision. The event is carefully monitored. We are concerned that if you have a 21-year-old drinking age, that is going to eliminate a lot of this on-campus program as far as being able to offer alcohol. That would eliminate a large portion of the student body being able to attend. What this does in many cases is give individual students on the campus a strong incentive to look elsewhere for social activity involving alcoholic consumption, and in many cases this involves driving much greater distance. For example, at Geneseo and other campuses, a large portion of the students reside right on campus, so there is no driving associated with activities on campus and in the college community, whereas there may be the use of transportation in many cases to attend activities outside of the college community. That is a concern of ours. Mr. FLORIO. Of course they wouldn't be available if we had a national uniform drinking age of 21, for the affected population. I mean there wouldn't be anybody unless you are talking about driving to Canada. Mr. FLORIO. The committee will commence. Let me apologize to you for the schedule around here. I appreciate your patience in the course of our long morning, but I think a very productive morning. Therefore, we would like to hear from our witnesses, perhaps Professor Goldberg. STATEMENTS OF STEPHEN P. GOLDBERG, WASHINGTON, D.C.; GREGORY SULLIVAN, PRESIDENT, NEW YORK STUDENT ASSOCIATION; JEFFERY M. PADUANO, CHAIRPERSON, CENTRAL COUNCIL, UNDERGRADUATE STUDENT ASSOCIATION, STATE UNIVERSITY OF NEW YORK COLLEGE; AND KATHERINE OZER, LEGISLATIVE DIRECTOR, UNITED STATES STUDENT ASSOCIA TION Mr. GOLDBERG. Thank you very much. My name is Steve Goldberg. I teach constitutional law at the Georgetown Law Center. I am here to discuss the constitutionality of your bill. I feel a little bit like a David up against a platoon of Goliaths in light of the panel of constitutional experts you just had. And I am a Goliath that doesn't necessarily have a proper slingshot, since I am not here to represent anybody. I am giving my own independent assessment of the bill. Mr. FLORIO. That may very well be your slingshot. Mr. GOLDBERG. It may be. Someone on the previous panel wistfully said that she would be willing to represent a certain position even if she weren't paid, and I am in that sainted position today. I am representing this position because it is the analysis that I have come to. Let me say before I turn to the bill before you, in terms of the discussion you have had with the last panel about the constitutionality of the proposal, that the Federal restriction be delayed for 2 years and then be imposed only in those States that don't on their own develop comparable measures, it seems to me that the Federal Government has many times used that method and it has been upheld in the Supreme Court. So I don't think it raises serious constitutional questions. For example, in the area of the regulation of surface mining, precisely that system was used whereby if the States would regulate the strip mining the Federal Government would not come in; if the States didn't, then the Federal hand would come in. That was upheld in Hodel v. Virginia Surface Miners Association. Similarly, in the energy field, the same system was used. It was upheld by the Supreme Court very recently in FERC v. Mississippi, so I don't see a major problem there. Mr. FLORIO. You think the environmental field with regard to EPA's approach to toxic waste is another example? Mr. GOLDBERG. Yes. It is absolutely routine, so I see no problem. with that as the compromise to be ultimately reached. Turning now to the central issue, which is really whether the 21st amendment, section 2 of it, bars your proposal, let me say first of all that I think that the suggestion that was made in the earlier testimony that it is crystal clear what the legislative history of the 21st amendment means would come as a great surprise to a number of people. In particular, it would come as a surprise to the unanimous Supreme Court. The unanimous Supreme Court stated in a recent decision, we are "reluctant to wade into the complex currents beneath the congressional proposal," the 21st amendment. The Senate sponsor of the amendment said the purpose was to give the States "absolute control." The Supreme Court goes on to say, "yet he also made statements supporting the claim that section 2 was designed only to insure that dry States could not be forced by the Federal Government to permit the sale of liquor. The sketchy records of the State conventions reflect no consensus on the thrust of section 2." So the unanimous Supreme Court would be puzzled by the notion that there was one and only one reading of the legislative history of the 21st amendment. Similarly, with this notion that the deleted section 3 demonstrates that Congress doesn't have concurrent power, the debates are murky. That provision may have been deleted because the deleted section 3 referred to liquor to be drunk on the premises where sold. It was a saloon provision, and some people feared that if section 3 were put in the Constitution, a State that wanted to allow liquor but not allow saloons could be overruled by Congress saying you must allow saloons. So that is probably the major reason that section 3 was stricken. Mr. FLORIO. I have been privy to too many congressional debates to in any way presume that the deliberative process is really that deliberative such that everything that is done is done for a specific purpose. Quite frankly, legislative history, particularly in taking into account the course of the debate, is something that I am not sure courts rely upon that much, unless they rely upon it selectively to justify the decision that is ultimately made in excerpting from legislative discussions the appropriate reinforcing points. Mr. GOLDBERG. Well in any event, this is an area where there are enough statements on both sides that a judge who wished to could follow that approach. It seems to me that taking the dominant purpose of the amendment, it is fair to say in my judgment that the law is not free from ambiguity. The dominant purpose was to allow dry States to remain dry and not to otherwise impinge on Federal power. There are explicit statements to that effect in the legislative history, as indicated in my testimony. I won't go into those further. Let me just say that there are two main reasons why I feel comfortable with the view that that was the dominant purpose, the purpose which would allow your bill to be constitutional. First of all, the majority of the commentators who have looked at this over the years have reached that conclusion. They have concluded that the second section of the 21st amendment was meant to embody the earlier pre-Prohibition statutes such as the Wilson Act and the Webb-Kenyon Act, which were simply designed to let the dry States remain dry. The second reason I feel reasonably comfortable that that is in fact the purpose of the second section of the 21st amendment is that the Supreme Court has said that that was the purpose of the second section of the 21st amendment. In the case of Craig v. Boren you had a challenge to drinking ages in the State, remarkably similar to the bill before us. The States said that there could be no regulation, under the equal protection clause or any other reason, of drinking ages within the States because of the 21st amendment. The Supreme Court rejected that claim and the Supreme Court said explicitly: The wording of section 2 of the 21st amendment closely follows the Webb-Kenyon and Wilson Acts, expressing the framers' clear intention of constitutionalizing the commerce clause framework established under those statutes. So I think there is a good basis for the argument that this bill is constitutional. Finally, in terms of the court's interpretation of the 21st amendment in light of Congress' commerce power, which is what we have before us, there is clear authority for what is being proposed in this bill. The Hostetter case, that the chairman has already referred to, where the court dramatically said that to say that the 21st amendment repeals the commerce clause is a bizarre conclusion. More recently in the Midcal case, the Supreme Court decided in a unanimous decision that a statute raising issues very similar to the bill before you was constitutional. In the Midcal case, the State of California asserted the authority to control the price, the resale price at which wine could be sold. An argument was raised that that was illegal under the Federal antitrust laws, which of course are based on the commerce power. The State of California said you can't tell us about the price of liquor. It is the 21st amendment. The Federal Government can say nothing about that. The Supreme Court, in an 8 to 0 decision, squarely rejected that argument. If you step back for a moment, look at what that means. Liberal justices, conservative justices, States rights justices, non-States rights justices, they have no problem with the notion that the 21st amendment does not repeal the commerce clause. I think the bill before you presents an easier case than the Midcal case because the bill before you, because of its temperance objectives, is actually in keeping with the purpose of the second section of the 21st amendment, and I think it would be ironic indeed to say that that amendment prevents this bill from being passed. Thank you very much. [The statement of Mr. Goldberg follows:] TESTIMONY of STEVEN GOLDBERG ASSOCIATE PROFESSOR OF LAW GEORGETOWN UNIVERSITY LAW CENTER I am here today as one who teaches Constitutional Law at Georgetown University Law Center to offer my views on the constitutionality of H.R. 3870, a bill to restrict the sale of alcoholic beverages to people under 21. In my judgment, the bill is constitutional. It is within Congress' power under the interstate commerce clause and it is forbidden by neither the tenth nor the twenty-first amendment. H.R. 3870 applies when an alcoholic beverage is in 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. Given the substantial impact of the alcoholic beverage industry on interstate commerce, Congress' power to enact this bill is clear. Over forty years of unbroken Supreme Court precedent supports Congress' ability to regulate activities of this type under the interstate commerce clause. The Court has upheld federal regulation of local activities even where the impact on interstate commerce of those activities has been much less direct than the impact of H.R. 3870. In upholding the application of federal wheat marketing quotas to wheat that the farmer himself consumes, the Court noted that "[e]ven if [an] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'" Wickard v. Filburn, 317 U.S. 111, 125 (1942). In more recent years the Supreme Court has upheld federal legislation forbidding 35-289 0-84-26 |