Opinion

JUSTICE O'CONNOR, dissenting.

The Court today upholds the National Minimum Drinking Age Amendment, 23 U.S.C. § 158 (1982 ed., Supp. III), as a valid exercise of the spending power conferred by Article I, § 8. But § 158 is not a condition on spending reasonably related to the expenditure of federal funds, and cannot be justified on that ground. Rather, it is an attempt to regulate the sale of liquor, an attempt that lies outside Congress' power to regulate commerce because it falls within the ambit of § 2 of the Twenty-first Amendment.

My disagreement with the Court is relatively narrow on the spending power issue: it is a disagreement about the application of a principle, rather than a disagreement on the principle itself. I agree with the Court that Congress may attach conditions on the receipt of federal funds to further "the federal interest in particular national projects or programs." Massachusetts v. United States, 435 U. S. 444, 435 U. S. 461 (1978); see Oklahoma v. Civil Service Comm'n, 330 U. S. 127, 330 U. S. 143 -144 (1947); Steward Machine Co. v. Davis, 301 U. S. 548 (1937). I also subscribe to the established proposition that the reach of the spending power "is not limited by the direct grants of legislative power found in the Constitution." United States v. Butler, 297 U. S. 1, 297 U. S. 66 (1936). Finally, I agree that there are four separate types of limitations on the spending power: the expenditure must be for the general welfare, Helvering v. Davis, 301 U. S. 619, 301 U. S. 640 -641 (1937), the conditions imposed must be unambiguous, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 451 U. S. 17 (1981), they must be reasonably related to the purpose of the expenditure, Massachusetts v. United States, supra, at 483 U. S. 461, and the legislation may not violate any independent constitutional prohibition, Lawrence County v. Lead-Deadwood School Dist., 469 U. S. 256, 469 U. S. 269 -270 (1985). Ante at 483 U. S. 207 -208. Insofar as two of those limitations are concerned, the Court is clearly correct that § 158 is wholly unobjectionable. Establishment of a national minimum drinking age certainly fits within the broad concept of the general welfare, and the statute is entirely unambiguous. I am also willing to assume, arguendo, that the Twenty-first Amendment does not constitute an "independent constitutional bar" to a spending condition. See ante at 483 U. S. 209 -211.

But the Court's application of the requirement that the condition imposed be reasonably related to the purpose for which the funds are expended is cursory and unconvincing. We have repeatedly said that Congress may condition grants under the spending power only in ways reasonably related to the purpose of the federal program. Massachusetts v. United States, supra, at 435 U. S. 461 ; Ivanhoe Irrigation Dist. v. McCracken, 357 U. S. 275, 357 U. S. 295 (1958) (the United States may impose "reasonable conditions relevant to federal interest in the project and to the over-all objectives thereof"); Steward Machine Co. v. Davis, supra, at 301 U. S. 590 ("We do not say that a tax is valid, when imposed by act of Congress, if it is laid upon the condition that a state may escape its operation through the adoption of a statute unrelated in subject matter to activities fairly within the scope of national policy and power"). In my view, establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose.

In support of its contrary conclusion, the Court relies on a supposed concession by counsel for South Dakota that the State "has never contended that the congressional action was... unrelated to a national concern in the absence of the Twenty-first Amendment." Brief for Petitioner 52. In the absence of the Twenty-first Amendment, however, there is a strong argument that the Congress might regulate the conditions under which liquor is sold under the commerce power, just as it regulates the sale of many other commodities that are in or affect interstate commerce. The fact that the Twenty-first Amendment is crucial to the State's argument does not, therefore, amount to a concession that the condition imposed by § 158 is reasonably related to highway construction. The Court also relies on a portion of the argument transcript in support of its claim that South Dakota conceded the reasonable relationship point. Ante at 483 U. S. 208 -209, n. 3, citing Tr. of Oral Arg.19-21. But counsel's statements there are, at best, ambiguous. Counsel essentially said no more than that he was not prepared to argue the reasonable relationship question discussed at length in the Brief for the National Conference of State Legislatures et al. as Amici Curiae.

Aside from these "concessions" by counsel, the Court asserts the reasonableness of the relationship between the supposed purpose of the expenditure -"safe interstate travel" -and the drinking age condition. Ante at 483 U. S. 208. The Court reasons that Congress wishes that the roads it builds may be used safely, that drunken drivers threaten highway safety, and that young people are more likely to drive while under the influence of alcohol under existing law than would be the case if there were a uniform national drinking age of 21. It hardly needs saying, however, that, if the purpose of § 158 is to deter drunken driving, it is far too overand under-inclusive. It is overinclusive because it stops teenagers from drinking even when they are not about to drive on interstate highways. It is under-inclusive because teenagers pose only a small part of the drunken driving problem in this Nation. See, e.g., 130 Cong.Rec. 18648 (1984) (remarks of Sen. Humphrey) ("Eighty-four percent of all highway fatalities involving alcohol occur among those whose ages exceed 21"); id. at 18651 (remarks of Sen. McClure) ("Certainly, statistically, if you use that one set of statistics, then the mandatory drinking age ought to be raised at least to 30"); ibid. (remarks of Sen. Symms) ("[M]ost of the studies point out that the drivers of age 21-24 are the worst offenders").

When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one. But it is not entitled to insist as a condition of the use of highway funds that the State impose or change regulations in other areas of the State's social and economic life because of an attenuated or tangential relationship to highway use or safety. Indeed, if the rule were otherwise, the Congress could effectively regulate almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced. If, for example, the United States were to condition highway moneys upon moving the state capital, I suppose it might argue that interstate transportation is facilitated by locating local governments in places easily accessible to interstate highways -or, conversely, that highways might become overburdened if they had to carry traffic to and from the state capital. In my mind, such a relationship is hardly more attenuated than the one which the Court finds supports § 158. Cf. Tr. of Oral Arg. 39 (counsel for the United States conceding that to condition a grant upon adoption of a unicameral legislature would violate the "germaneness" requirement).

There is a clear place at which the Court can draw the line between permissible and impermissible conditions on federal grants. It is the line identified in the Brief for the National Conference of State Legislatures et al. as Amici Curiae:

Congress has the power to spend for the general welfare, it has the power to legislateonly for delegated purposes.... The appropriate inquiry, then, is whether the spending requirement or prohibition is a condition on a grant or whether it is regulation. The difference turns on whether the requirement specifies in some way how the money should be spent, so that Congress' intent in making the grant will be effectuated. Congress has no power under the Spending Clause to impose requirements on a grant that go beyond specifying how the money should be spent. A requirement that is not such a specification is not a condition, but a regulation, which is valid only if it falls within one of Congress' delegated regulatory powers.

Id. at 19-20.

This approach harks back to United States v. Butler, 297 U. S. 1 (1936), the last case in which this Court struck down an Act of Congress as beyond the authority granted by the Spending Clause. There the Court wrote that

[t]here is an obvious difference between a statute stating the conditions upon which moneys shall be expended and one effective only upon assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced.

Id. at 297 U. S. 73. The Butler Court saw the Agricultural Adjustment Act for what it was -an exercise of regulatory, not spending, power. The error in Butler was not the Court's conclusion that the Act was essentially regulatory, but rather its crabbed view of the extent of Congress' regulatory power under the Commerce Clause. The Agricultural Adjustment Act was regulatory but it was regulation that today would likely be considered within Congress' commerce power. See, e.g., Katzenbach v. McClung, 379 U. S. 294 (1964); Wickard v. Filburn, 317 U. S. 111 (1942).

While Butler's authority is questionable insofar as it assumes that Congress has no regulatory power over farm production, its discussion of the spending power and its description of both the power's breadth and its limitations remain sound. The Court's decision in Butler also properly recognizes the gravity of the task of appropriately limiting the spending power. If the spending power is to be limited only by Congress' notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives

power to the Congress to tear down the barriers, to invade the states' jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed.

United States v. Butler, supra, at 297 U. S. 78. This, of course, as Butler held, was not the Framers' plan and it is not the meaning of the Spending Clause.

Our later cases are consistent with the notion that, under the spending power, the Congress may only condition grants in ways that can fairly be said to be related to the expenditure of federal funds. For example, in Oklahoma v. CSC, 330 U. S. 127 (1947), the Court upheld application of the Hatch Act to a member of the Oklahoma State Highway Commission who was employed in connection with an activity financed in part by loans and grants from a federal agency. This condition is appropriately viewed as a condition relating to how federal moneys were to be expended. Other conditions that have been upheld by the Court may be viewed as independently justified under some regulatory power of the Congress. Thus, in Fullilove v. Klutznick, 448 U. S. 448 (1980), the Court upheld a condition on federal grants that 10% of the money be "set aside" for contracts with minority business enterprises. But the Court found that the condition could be justified as a valid regulation under the commerce power and § 5 of the Fourteenth Amendment. Id. at 448 U. S. 476, 448 U. S. 478. See also Lau v. Nichols, 414 U. S. 563 (1974) (upholding nondiscrimination provisions applied to local schools receiving federal funds).

This case, however, falls into neither class. As discussed above, a condition that a State will raise its drinking age to 21 cannot fairly be said to be reasonably related to the expenditure of funds for highway construction. The only possible connection, highway safety, has nothing to do with how the funds Congress has appropriated are expended. Rather than a condition determining how federal highway money shall be expended, it is a regulation determining who shall be able to drink liquor. As such, it is not justified by the spending power.

Of the other possible sources of congressional authority for regulating the sale of liquor, only the commerce power comes to mind. But in my view, the regulation of the age of the purchasers of liquor, just as the regulation of the price at which liquor may be sold, falls squarely within the scope of those powers reserved to the States by the Twenty-first Amendment. Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 467 U. S. 716 (1984). As I emphasized in 324 Liquor Corp. v. Duffy, 479 U. S. 335, 479 U. S. 356 (1987) (dissenting opinion):

The history of the Amendment strongly supports Justice Black's view that the Twenty-first Amendment was intended to return absolute control of the liquor trade to the States, and that the Federal Government could not use its Commerce Clause powers to interfere in any manner with the States' exercise of the power conferred by the Amendment.

Accordingly, Congress simply lacks power under the Commerce Clause to displace state regulation of this kind. Ibid.

The immense size and power of the Government of the United States ought not obscure its fundamental character. It remains a Government of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 405 (1819). Because 23 U.S.C. § 158 (1982 ed., Supp. III) cannot be justified as an exercise of any power delegated to the Congress, it is not authorized by the Constitution. The Court errs in holding it to be the law of the land, and I respectfully dissent.