the sale of misbranded drugs that have moved in interstate commerce, even when the drugs are ultimately sold by a retailer who received them from an in-state wholesaler. United States v. Sullivan, 332 U.S. 689 (1948). The Court has also upheld federal legislation forbidding discrimination against Blacks by a small restaurant where the restaurant purchased 46 percent of its food from a local supplier who had procured it from outside the state. Katzenbach v. McClung, 379 U.S. 294 (1964).

Under the circum

stances, the national traffic in alcoholic beverages and the substantial impact on interstate commerce caused by those who drink and drive bring H.R. 3870 well within congressional power. The tenth amendment's reservation to the states and the people of powers not delegated to the federal government is not a bar to this bill. Under modern tenth amendment analysis, the constitutionality of H.R. 3870 will be assessed somewhat differently depending upon whether the sale of alcohol in a given state is predominantly a private function or a state function. Although the analysis varies, in either case Congress' power is

clear.

In those states where the sale of alcohol, although regulated by the state, is left to private parties, the tenth amendment imposes no restriction on H.R. 3870. Because the bill is based squarely on Congress' commerce power, the area can be preempted by federal law. In upholding federal regulation of surface coal mining, an area previously regulated by the states, the Supreme Court emphasized that "[n]othing . . . suggests that the Tenth Amendment shields the States from pre-emptive federal

regulation of private activities affecting interstate commerce The Court long ago rejected the suggestion that Congress invades areas reserved to the states by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers. Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264, 290-291 (1981).

In those states where the state itself sells alcoholic beverages the tenth amendment analysis is different since in those cases H.R. 3870 would involve the federal government in directly regulating the states themselves. In such cases, the test of federal power stems from the Court's decision in National Leagues of Cities v. Usery, 426 U.S. 833 (1976). The Court has interpreted Usery as establishing four tests, each of which must be met before federal legislation is invalid: 1) the federal statute must regulate the states as states; 2) the federal regulation must address matters that are indisputably attributes of state sovereignty; 3) the federal regulation must directly impair the state's ability to structure integral operations in areas of traditional functions; and 4) even if the three preceding requirements are all met, a balancing test might still demonstrate that the federal interest is so great as to justify state submission. Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264, 287-288 (1981); United Transportation Union v. Long Island R. Co., 455 U.S. 678, 684 (1982).

It is unclear whether the Court would find that the sale of

The

alcoholic beverages is an indisputable attribute of state sovereignty as required by test 2 above. In any event, it is reasonably clear that the Court would not find that H.R. 3870 directly impairs the state's ability to structure its integral operations and thus test 3 would not be met. In the only case in which federal legislation was struck down pursuant to the tests above, federal law required that state employees, including police and fire fighters, be provided, among other things, pay at one and one-half times their regular rate for overtime. Court concluded that this would displace the state's ability to structure employer-employee relations in vital areas, such as law enforcement, "which governments are created to provide." National League of Cities v. Usery, 426 U.S. 833, 851 (1976). The sale of alcohol to those under 21 is not such an area. This has become obvious in recent cases in which the Court has upheld federal regulation of state-owned railroads, since such regulation "simply does not impair a state's ability to function as a state," United Transportation Union v. Long Island Railroad Co., 455 U.S. 678, 686 (1982), and has upheld as well application of federal age discrimination law to state employees, since such laws did not displace important state policies. EEOC v. Wyoming, 103 S. Ct. 1054 (1983). Even in the unlikely event that the sale of alcohol to young people was found to be a vital state function, the balancing process set forth as test 4 above might well result in the Court upholding Congress' ability to enact H.R. 3870, since the federal interest in improving the safety of interstate transportation by reducing drunk driving is so great.

The most difficult question concerning the constitutionality of H.R. 3870 is posed by the 21st amendment. Section 1 of this amendment repealed prohibition, while section 2 provides that "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 question is whether the preservation in section 2 of certain states' rights prevents Congress from setting a national drinking age through its use of the interstate commerce

power.

The history of section 2 has often been studied, with two major interpretations emerging. The first, called by some the "absolutist" position, holds that the section grants the states complete authority over all aspects of the liquor trade within their borders. The second, sometimes called the "federalist" position, contends that the section was designed to allow states willing to be dry to do so, but that Congress otherwise retained power over interstate commerce in liquor. See, e.g., The Effect of the Twenty-First Amendment on State Authority to Control Intoxicating Liquors, 75 Columbia Law Review 1578, 1579-1581 (1975); Economic Localism in State Alcoholic Beverage Laws-Experience Under the Twenty-First Amendment, 72 Harvard Law Review 1145, 1147 (1959).

The legislative history of the amendment is ambiguous; there are statements in Congress and in the ratification debates to support both theories. Thus Senator Walsh, an "absolutist," argued that, "the purpose of [section two is] to make the

intoxicating liquor subject to the laws of the state once it passed the state line. . .," 76 CONG. REC. 4219 (1933), while Senator Fess, a "federalist" said that section 2 "is designed to permit the Federal authority to assist the states that want to be dry to remain dry." 76 CONG. REC. 4168 (1933). Senator Blaine, chairman of the Senate Judiciary Committee that wrote the amendment, made statements supporting both theories. See 76 CONG. REC. 64 (1933). Similar ambiguity surrounds Congress' decision to delete a proposed section 3 of the amendment which would have provided that, "Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." Some opposed this on the "absolutist" ground that it gave Congress power in the purely state area of alcohol regulation, but others opposed it on the more limited "federalist" ground that it might be read to allow Congress to authorize saloons in states that opposed them. See State Power to Regulate Liquor: Section Two of the Twenty-First Amendment, Reconsidered, 24 Syracuse Law Review 1131, 1134 (1973).

Perhaps the strongest argument in favor of the "federalist" interpretation of section 2 of the 21st amendment stems from the history of the language used in that section. Prior to prohibition, dry states found themselves flooded with liquor that was in its original package and that had been shipped in interstate commerce, and was thus often beyond the states' power Congress, to enable dry states to remain dry, passed the Webb-Kenyon Act, which provided in part that, "the shipment

to control.