South Dakota v. Dole

Justices Brennan and O'Connor dissented, both holding that 158 did indeed abridge states' rights to regulate issues involving liquor sale and consumption. Justice Brennan issued a short opinion in which he voiced his disagreement with the majority and his agreement with Justice O'Connor, who wrote at greater length on the thesis that "158 is not a condition on spending reasonably related to the expenditure of federal funds . . . Rather, it is an attempt to regulate the sale of liquor, an attempt that lies outside Congress' power to regulate commerce . . . "

In O'Connor's view, section 158 failed two of the Court's four tests: not only was it unconstitutional, but "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." The National Conference of State Legislatures, O'Connor wrote, had properly drawn the line between "permissible and impermissible conditions on federal grants" when, in its brief to the Court, it posited that "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." If it specified the ways to use funds--such as building highways--and left it at that, then a law was constitutional; any further commentary wandered into the area of regulation: "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." O'Connor found the present case different from those addressed in Butler and Oklahoma, nor did the regulations in 158 fit with Congress's powers under the Commerce Clause of the Constitution. Therefore, Justice O'Connor concluded, "Because . . . 158 . . . 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."