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equally doubtful whether the Court would find that the ball directly io pairs the state's ability to structure its integral operations and thus the

third test would arguably not be met.

The only case in which federal legis

lation was struck down pursuant to the above tests was when a federal law

required that state employees, including police and fire fighters, be provided, among other requirements, pay at one and one-half times their regular rate for overtime. In reviewing this situation, the Court concluded that this would displace the state's ability to structure its employer-er ployee relations in vital areas, such as law enforcement, which was a part

of the government and services which state governments are expected to

37/ provide.

The sale of alcohol to those persons under the age of twenty-one would

not seem to fall within an area of exclusive state interest or control, nor to

38/ lopair a state's ability to function as a state. By analogy, the Court has also upheld application of federal age discrimination laws to state enployees,

39/ since such laws did not displace important state policies. Even in the rather

37/ National League, 426 C.s. 633, 851 (1976).

38/ See, United Transportation Union v. Long Island Railroad Co., 455 U.S. 678, 686 (1982).

39/ EEOC v, Wyoming, 103 S.Ct. 1054 (1983).

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unlikely event that the sale of alcoholic beverages to young people was found

to be a vital state function, the balancing test set forth as test 4 above in

National League night well result in the Court upholding Congress' ability

to enact the bill, since the federal interest in improving the safety of Interstate transportation by reducing drunken driving is of arguably compel

ling stature.

CONCLUSION

From our analysis of the bill. it appears that it would probably sur

vive constitutional challenges.

However, only a judicial review could

absolutely determine its constitutionality.

The report has examined

the bill within the context of three areas of the Constitution:

the Twenty

First Amendment, the Commerce Clause, and the Tenth Amendment.

An analysis of the Twenty-First Amendment's legislative history and

subsequent judicial interpretations lead to the conclusion that the bill

18 probably constitutional from the point of view of this Amendment.

It seems likely that the "federalist" approach to the Amendment, which

preserves federal control over liquor, would be persuasive for judicial

interpretation and this position would arguably support the constitutionality

of the bill.

In its most recent examination of the Amendment, the Supreme

Court proposed a sort of balancing test, examining the competing federal

and state interests.

(California Retail Liquor Dealers Association v.

Midcal Aluminum, Inc., 445 U.S. 97 (1980)). Applying the Midcal balancing

test to the bill, it appears that a strong argument can be made in favor

of the constitutionality of the bill.

Under the bill, the state interest in

being able to provide alcohol to persons under the age of twenty-one would

not seem compelling, while the federal interest in eliminating drunken driv

ing may be so found.

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Congress clearly has the power to regulate the commerce under the

Constitution.

The Court has examined and upheld a wide variety of legis

lation which was enacted to protect the public from certain dangers. A

"rational basis" test has been developed in determining the constitution

alty of such legislation.

In applying the rational basis test, it must be

determined whether the congressional legislative scheme which regulates

the activity affecting interstate commerce really has a rational basis.

Applying this test to the bill, it may reasonably be postulated, on the

basis of the developed legislative history, that the regulated activity

the control of alcohol with the aim of reducing drunken driving- affect

interstate commerce and therefore is rational in the constitutional

sense.

Nor does it appear that the Tenth Amendment may be an impediment to the

constitutionality of the legislation.

National League of Cities articu

lated a four-step test which must be met for federal legislation to be deem

ed unconstitutional under the Tenth Amendment.

It does not appear that

the criteria set forth in that case would apply to invalidate the bill

under the Tenth Amendment.

Doualas Reid Wear

Douglas Reid Weimer
Legislative Attorney

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