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States should be allowed to make their own drinking laws because the Constitution does not state that this is a right given to the federal government and therefore, it rightfully belongs to the state governments. This does not classify as an inherent power because Congress has no reason to believe that these laws are necessary for the government to function, especially considering that the United States has only instituted a MLDA – minimum legal drinking age – in the last hundred years. In fact, the history of MLDAs demonstrates how states have been deciding their own drinking laws for years, without the federal government ever needing to get involved.
When prohibition was repealed on December 5, 1933, each state was allowed to set their own laws for alcohol consumption within their jurisdiction (Hedlund).
It is due to this history that it can be logically concluded that this does not function as an implied power of Congress – especially when it is seen how rather than simply legislating the issue, as they would do if they truly believed they had the right, the government has been going through loopholes of crossover sanctions, the Highway Trust Fund, and misreading the twenty- first amendment for their own gain as they try to pass laws on what should be an issue of implied power.
They eventually succeeded in the eighties, a decision that has been upheld in the Supreme Court, but this does not disprove the fact that they never should have been given the right to pass this law in the first place.
Prior to the National Minimum Drinking Age Act of 1984, states had decided the age of alcohol consumption independently for their constituents. With the addition of the new law in 1984, which forced all states to raise their minimum legal drinking age to twenty-one, the federal government instituted a policy of crossover sanctions which “force the implementation of federal requirements in one area or the states risk losing money in another, similar area” (LaFaive). In this case, any states that refused to raise their drinking age to twenty-one would be punished by a reduction of their highway funds by ten percent. This was vastly different from the system of states control that had operated until this point, when many states were lowering their drinking age to eighteen to reflect the changing climate following the Vietnam War, when young adults could be drafted to fight for their country but were not allowed to drink.
In 1970, the twenty-sixth amendment lowered the voting age to eighteen for this reason (“The 26th Amendment”) and many states decided to lower their drinking age accordingly. The issue with federal legislation about drinking age is that situations like this are less likely to be taken into account, as can be seen by the federal government choosing the age of twenty-one.
This age makes sense in a post-prohibition era when young adults couldn’t vote until that age either, but now it shows that the government is unable to keep as up-to-date as more local governments could. This switch to a system of manipulative fiscal federalism was stated by the federal government to have been done to serve the purpose of protecting young lives as fatalities related to alcohol and drunk driving vastly increased in alignment with states in the sixties and seventies lowering their drinking age to eighteen (MADD). This is not the issue, however. The question is not whether or not lives have been saved by the federal law or not – it is that this was never a choice for the federal government to make in the first place. Whether states do a good job of choosing an appropriate minimum legal drinking age is not to be considered, although the United States has the highest drinking age in the world (ProCon.org), but rather that they are being denied their Constitutional right to decide.
Likewise, drinking age is never mentioned in the Constitution and the federal government knows it – they knew that they had no right to legislate on this issue and so covered it up by technically making the act option to states, only enforceable through coercive funds that states need to keep their highways intact. States have the right to legislate any issue that is not explicitly given to the federal government as stated in the tenth amendment but Congress has been using crossover sanctions and its role as a regulator of interstate commerce to deny states of funds from the Highway Trust Fund, which is “a transportation fund in the United States which receives money from a federal fuel tax of 18.4 cents per gallon on gasoline and 24.4 cents per gallon of diesel fuel and related excise taxes” (Highway Trust Fund) (Resnick).
This has been considered legal through the supreme court case South Dakota v. Dole, which stated that taking five percent of a state’s highway fund for refusal to cooperate with the federally mandated drinking age was not considered unduly coercive through the spending clause of the twenty-first amendment (South Dakota v. Dole). It is important to note that this is a decision based on five percent of their highway fund, and that the actual amount that the federal government takes away nowadays is actually twice this amount. Similarly, this is not fair for the states because the funds come from the tax dollars of their constituents and should not be held hostage. The federal government knows that they are in the wrong and do not have the right to legislate on this issue and yet continues to do so.
The states have violated no part of the Constitution by changing the drinking age within their jurisdiction to twenty-one, eighteen, or whatever other age that they choose and should not be punished for following the laws of this nation. The twenty-first amendment, which repealed the eighteenth amendment which legislated prohibition, has said nothing about a minimum legal drinking age and so this falls into the category of an implied power, which means that it should be left to the states to decide. As Judge O’Connor stated in his dissenting opinion in Dole,
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
What the judge is arguing is that the commerce clause, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes”, is not a factor in the decision of Dole because the case is not centered around whether or not the federal government has the right to control the Highway Trust Fund, as they clearly do, but whether the drinking age is adequately relevant to these funds to justify keeping them from states – and, more importantly, whether the federal government has the right to pursue crossover sanctions for this issue at all. The fact of the matter is that this is an easy realization to come to. The Constitution does not say anything about drinking age and so it is the implied right of the states to legislate on this issue if they choose to. The National Minimum Drinking Age Act of 1984 is not only unnecessary, it is unconstitutional in the strictest version of the law. Congress knew this when they looked for loopholes and the rights of the states must be protected.
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