The Drinking Age Story Shows How Washington Buys Control of the States

Pop quiz, and it is a trick question. Which federal law sets the legal drinking age in the United States at 21? Take your time. Think about the Constitution, think about the Code, think about the last time you showed an ID at a ballgame.

The answer is none. There is no federal law that says a person must be 21 to buy a beer. Every state has its own drinking-age statute, and the fact that they all say 21 is not a coincidence, a miracle, or a spontaneous outbreak of agreement among fifty legislatures. It is the result of a very American maneuver, one that deserves to be understood by anybody who wants to know how Washington really gets its way. The maneuver was a threat to hold back highway money. A South Dakota case about 3.2 percent beer made it the law of the land. And the template it created has been used on the states ever since.

How the age got to 21

Rewind to the early 1970s. In 1971 the country ratified the 26th Amendment, lowering the voting age to 18, and the argument that a person old enough to vote and to be drafted was old enough to drink swept through many statehouses. A number of states lowered their drinking ages. Then came a wave of concern about drunk driving, and in 1980 a mother named Candace Lightner founded Mothers Against Drunk Driving after her daughter was killed by a drunk driver. In 1982 President Reagan appointed a Presidential Commission on Drunk Driving, which recommended a national 21 minimum.

Now there was a political problem. Many people agreed that 21 was a sensible age, but there was a constitutional wrinkle. The regulation of alcohol sales is a classic matter of state police power, and the 21st Amendment, which ended Prohibition in 1933, gave states broad authority over liquor within their borders. Congress had no obvious power to say "you must be 21." Passing a federal law would invite a lawsuit it might lose.

So Congress did something clever. It passed the National Minimum Drinking Age Act of 1984, which President Reagan signed that July. The law does not mention a person's age at the liquor store at all. Instead it says that if a state does not prohibit the purchase and public possession of alcohol by anyone under 21, the Secretary of Transportation shall withhold a share of the state's federal highway funds: 5 percent the first year, 10 percent in later years. A state is perfectly free to keep its drinking age at 19. It just has to pay for the privilege.

South Dakota takes it to court

South Dakota, which allowed 19-year-olds to buy low-alcohol beer, sued. In South Dakota v. Dole, decided on June 23, 1987, the Supreme Court ruled against the state by a vote of 7 to 2. Chief Justice William Rehnquist wrote the opinion, and Justices William Brennan and Sandra Day O'Connor dissented. The Court's reasoning is worth understanding, because it is the foundation of an enormous share of modern federal power.

The Constitution gives Congress, in Article I, Section 8, the power "to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." The Court said that power includes the power to spend for the general welfare, and that Congress may attach conditions to the money it hands out. Rehnquist set out a four-part test for when those conditions are valid:

1. The spending must be in pursuit of "the general welfare."
2. The conditions must be unambiguous, so the states know what they are signing up for. (A line of cases, including Pennhurst State School v. Halderman in 1981, had already said a state must have clear notice, because a grant works like a contract.)
3. The conditions must relate to the federal interest in the particular national project or program.
4. The condition cannot violate some other provision of the Constitution.

South Dakota argued that the 21st Amendment protected its control over alcohol. The Court said the 21st Amendment was not the issue. Even if Congress could not set a national drinking age directly, it could encourage uniformity by offering or withholding money. The loss of 5 percent of highway funds was, in the Court's words, a "relatively mild encouragement," and the state remained free to say no.

Notice what that last move does. Congress cannot command; it can incentivize. And an incentive big enough to be impossible to refuse does the same work as a command.

The dissent that saw it coming

Justice O'Connor wrote the dissent, and she made a point that conservatives have been quoting ever since. The drinking age, she said, has nothing to do with how highway money is spent. The condition is not tied to the roads. It is a regulation of alcohol, wearing a spending costume. If Congress can do indirectly what it cannot do directly, then the limits on its powers are only as strong as its imagination. She warned that reading the spending power so broadly would make the enumeration of federal powers in Article I meaningless, because Congress could do almost anything just by dangling money.

That is the heart of the issue. The Constitution's design, as we explain in Congress Can Only Do What the Constitution Lists and Madison Said So, is a government of listed powers. The spending clause, read broadly, is a master key.

The mechanism, in plain English

Here is how it works for a family that never intended to learn any of this. Washington collects taxes from you, including the federal gas tax you pay at the pump. It sends some of the money back to the state in the form of grants, and the grants come with rules. If the state follows the rules, it gets the money. If it breaks them, it loses some. The governor, who has to decide whether to give up a pile of highway dollars in order to preserve a local policy, nearly always follows the rules.

A hypothetical shows the squeeze. Suppose a state receives $400 million a year in federal highway money. Five percent of that is $400 million times 0.05, which is $20 million. Ten percent is $40 million. Now suppose the state has 4 million residents. Losing $40 million, spread over the population, comes to $40,000,000 divided by 4,000,000, or $10 per resident. That does not sound like a lot, until you realize that the governor would have to either cut road work or raise taxes by that amount to replace it, and then explain to voters that it was all to defend a policy that most of them did not care much about. The pressure is not dramatic. It is steady, and that is why it works.

Remember also that the money is the state's own taxpayers' money in the first place. Washington is returning, with conditions, dollars it collected from the same people. In the language of the Constitution, it is a "tax" first and a "grant" afterward. A state that refuses the strings does not get a tax cut. Its citizens still pay the federal tax. They simply stop getting the benefit.

So it is no mystery why, one by one, states raised their ages to 21. Within a few years, every state had complied. A policy that Congress said it could not impose, it persuaded the states to impose on themselves.

It was not a Democratic trick

Let me be fair about this, because the story would be easy to tell as a morality play about Washington Democrats. It is not. President Reagan, a conservative who campaigned against big government, signed the 1984 law. Republican Congresses and Republican presidents have used the same lever for other purposes. In 1974 Congress tied highway money to a national speed limit of 55 miles per hour, and it stayed in force until Congress repealed the requirement in 1995. Later highway-money laws pushed states toward a 0.08 blood-alcohol limit. Education laws tie federal school dollars to testing and standards, a story told in From Title I to ESSA, Fifty Years of Washington Meddling in Your Schools. Whoever holds the pen finds that the spending power is the easiest tool in the box.

That is why this is a principle problem, and not a partisan one. The lever is bipartisan, and so is the temptation.

The best argument for the Act

The steelman deserves its time. Supporters of the 1984 law say it was a bargain, not a command. No state was forced. Congress was spending its own money and was entitled to say what it was for. The goal, fewer deaths on the highways, was one almost nobody opposed. Differing drinking ages created a "blood border" problem in which teenagers drove across state lines to drink and then drove home. A national standard solved a collective-action problem that no individual state could solve on its own. And the Constitution, they point out, gives Congress the power to spend for the general welfare. If the people do not like it, they can elect a Congress that will stop.

Those points are real. The goal was good. The method was lawful under the Court's precedents. And I will say that on the narrow facts of this case, 5 percent of highway funds for an age limit that most Americans supported is not the worst example of federal arm-twisting in history.

Why it still matters

But the principle stands even if the example is mild. There are four problems.

1. It blurs responsibility. When a state raises its drinking age because of a federal threat, who do the voters blame? Their legislature, who did it, or Congress, who forced it? A system where nobody can tell who is accountable is a system where nobody is.
2. It makes the Constitution's list of powers optional. If Congress can reach any subject by attaching a string to money, the enumeration in Article I is a suggestion. This is O'Connor's warning.
3. It rewards dependence. The more of a state budget that comes from Washington, the less a state can say no. The grant that was once a bonus becomes the rent.
4. It stacks over time. One string is mild. A thousand strings are a leash.

The Court did eventually draw a line. In NFIB v. Sebelius in 2012, the justices considered the Affordable Care Act's expansion of Medicaid, which threatened states with the loss of all their existing Medicaid funding if they declined the expansion. Chief Justice John Roberts, in the controlling opinion, said that when the "financial inducement" is so large it leaves the state no real choice, "pressure turns into compulsion," and he used the memorable phrase "a gun to the head." Seven justices agreed that the threat was unconstitutionally coercive, and the remedy was to bar the Secretary from withholding the existing funds over the expansion. We tell that story in NFIB v. Sebelius Lost the Mandate Fight but Won a Limit on Federal Strings. The lesson is that there is a line, but nobody has said exactly where, and it is easier to stay on the right side of it than to cross and complain.

What you can do about it

You are not powerless in this story. The strings come from Congress and the state legislature accepts them, and both can be asked questions.

• Ask what the strings are. When your state legislature considers a federal grant, ask for the conditions in writing and the state's cost to comply. Most legislators will be glad somebody asked.
• Count the real cost. Federal money is rarely free. A match requirement, a reporting burden or a mandate that outlasts the grant can cost more than the grant is worth.
• Prefer block grants. Money with few strings leaves decisions where Subsidiarity Is the Old Idea Behind Keeping Power as Close to Home as Possible says they belong.
• Use the ballot. Congress can narrow the spending clause, and every state can refuse. Both start with voters. A good starting question for any new federal program is the list in Ten Questions to Ask Before You Support Any New Government Program.

For the wider picture of how states differ and why that matters, see Three Towns, Three Rule Books and the Case for Letting States Differ, and for how the same logic bears on the Tenth Amendment, see The Tenth Amendment Rule That Protects Red States Also Protects Sanctuary Cities. Congress's spending habits are the subject of Why Spending Restraint Keeps Losing in Washington, Whoever Is in Charge. You can also track current appropriations on our /politics/bills/ page.

The bottom line

• No federal law sets the drinking age. Congress threatened a share of highway funds, the Supreme Court upheld the method in South Dakota v. Dole in 1987, and every state complied.
• The method works because the money was the taxpayers' own to begin with. Washington taxes, then offers the money back on conditions.
• The 2012 NFIB decision shows there is a limit, a "gun to the head," but the line is blurry. Do not assume it will protect your state.
• Whenever a federal grant comes with strings, ask three things: what does it cost, who is accountable for the rule, and could we say no and live?
• The fix is not to hate federal money. It is to insist that Congress use its enumerated powers openly and let states decide the rest.