North Dakota v. United States

495 U.S. 423, 110 S. Ct. 1986, 109 L. Ed. 2d 420, 36 Cont. Cas. Fed. 75,866, 1990 U.S. LEXIS 2574, 58 U.S.L.W. 4574

• Court: Supreme Court of the United States
• Decided: May 21, 1990
• Docket: 88-926
• Status: Published

Opinions

Justice Stevens

announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice White, and Justice O’Connor join.

The United States and the State of North Dakota exercise concurrent jurisdiction over the Grand Forks Air Force Base and the Minot Air Force Base. Each sovereign has its own separate regulatory objectives with respect to the area over which it has authority. The Department of Defense (DoD), which operates clubs and package stores located on those bases, has sought to reduce the price that it pays for alcoholic beverages sold on the bases by instituting a system of competitive bidding. The State, which has established a liquor distribution system in order to promote temperance and ensure orderly market conditions, wishes to protect the integrity of that system by requiring out-of-state shippers to file monthly reports and to affix a label to each bottle of liquor sold to a federal enclave for domestic consumption. The clash between the State’s interest in preventing thé diversion of liquor and the federal interest in obtaining the lowest possible price forms the basis for the Federal Government’s Supremacy Clause and pre-emption challenges to the North Dakota regulations.

I

The United States sells alcoholic beverages to military personnel and their families at clubs and package stores on its military bases. The military uses revenue from these sales to support a morale, welfare, and recreation program for personnel and their families. .See 32 CFR §261.3 (1989); DoD Directive 1015.1 (Aug. 19, 1981). Before December 1985, no federal statute governed the purchase of liquor for these establishments. From December 19, 1985, to October 19, 1986, federal law required military bases to purchase alcoholic beverages only within their home State. See Pub. L. 99-190, §8099, 99 Stat. 1219. Effective October 30, 1986, Congress eliminated the requirement that the military purchase liquor from within the State and directed that distilled spirits be “procured from the most competitive source, price and other factors considered.” Pub. L. 99-661, §313, 100 Stat. 3853, 10 U. S. C. § 2488(a).¹

In accordance with this statute, the DoD has developed a joint-military purchasing program to buy liquor in bulk directly from the Nation’s primary distributors who offer the lowest possible prices. Purchases are made pursuant to a DoD regulation which provides:

“ ‘The Department of Defense shall cooperate with local, state, and federal officials to the degree that their duties relate to the provisions of this chapter. However, the purchase of all alcoholic beverages for resale at any camp, post, station, base, or other DoD installation within the United States shall be in such a manner and under such conditions as shall obtain for the government the most advantageous contract, price and other considered factors. These other factors shall not be construed as meaning any submission to state control, nor shall cooperation be construed or represented as an admission of any legal obligation to submit to state control, pay state or local taxes, or purchase alcoholic beverages within geographical boundaries or at prices or from suppliers prescribed by any state.’” 32 CFR §261.4 (1989).

Since long before the enactment of the most recent procurement statute, the State of North Dakota has regulated the importation and distribution of alcoholic beverages within its borders. See N. D. Cent. Code ch. 5 (1987 and Supp. 1989). Under the State’s regulatory system, there are three levels of liquor distributors: out-of-state distillers/suppliers, state-licensed wholesalers, and state-licensed retailers. Distillers/suppliers may sell to only licensed wholesalers or federal enclaves. N. D. Admin. Code §84-02-01-05(2) (1986). Licensed wholesalers, in turn, may sell to licensed retailers, other licensed wholesalers, and federal enclaves. N. D. Cent. Code §5-03-01 (1987). Taxes are imposed at both levels of distribution. N. D. Cent. Code §5-03-07 (1987); N. D. Cent. Code ch. 57-39.2 (Supp. 1989). In order to monitor the importation of liquor, the State since 1978 has required all persons bringing liquor into the State to file monthly reports documenting the volume of liquor they have imported. The reporting regulation provides:

“All persons sending or bringing liquor into North Dakota shall file a North Dakota Schedule A Report of all shipments and returns for each calender month with the state treasurer. The report must be postmarked on or before the fifteenth day of the following month.” N. D. Admin. Code §84-02-01-05(1) (1986).

Since 1986, the State has also required out-of-state distillers who sell liquor directly to a federal enclave to affix labels to each individual item, indicating that the liquor is for domestic consumption only within the federal enclave. The labels may be purchased from the state treasurer for a small sum or printed by the distillers/suppliers themselves according to a state-approved format. App. 34. The labeling regulation provides:

“All liquor destined for delivery to a federal enclave in North Dakota for domestic consumption and not transported through a licensed North Dakota wholesaler for delivery to such bona fide federal enclave in North Dakota shall have clearly identified on each individual item that such shall be for consumption within the federal enclave exclusively. Such identification must be in a form and manner prescribed by the state treasurer.” N. D. Admin. Code §84-02-01-05(7) (1986).

Within the State of North Dakota, the United States operates two military bases: Grand Forks Air Force Base and Minot Air Force Base. The State and Federal Government exercise concurrent jurisdiction over both.² Shortly after the effective date of the procurement statute permitting the military to make purchases from out of state, the state treasurer conducted a meeting with out-of-state suppliers to explain the labeling and reporting requirements. App. 34. Five out-of-state distillers and importers thereupon informed federal military procurement officials that they would not ship liquor to the North Dakota bases because of the burden of complying with the North Dakota regulations.³ A sixth supplier, Kobrand Importers, Inc., increased its prices from between $0.85 and $20.50 per case to reflect the cost of labeling and reporting.

The United States instituted this action in the United States District Court for the District of North Dakota seeking declaratory and injunctive relief against the application of the State’s regulations to liquor destined for federal enclaves. The District Court denied the United States’ cross-motion for summary judgment and granted the State’s motion. The court reasoned that there was no conflict between the state and federal regulations because the state regulations did not prevent the Government from obtaining beverages at the “lowest cost.” 675 F. Supp. 555, 557 (1987). A divided United States Court of Appeals for the Eighth Circuit reversed. 856 F. 2d 1107 (1988). While recognizing that “nothing in the record compels us to believe that the regulations are a pretext to require in-state purchases,” id., at 1113, the majority held that the regulations impermissibly made out-of-state distillers less competitive with local wholesalers. Ibid. Chief Judge Lay argued in dissent that the effect on the Federal Government was a permissible incident of regulations passed pursuant to the State’s powers under the Twenty-first Amendment. Id., at 1115-1116. We noted probable jurisdiction, 489 U. S. 1095 (1989), and now reverse.

II

The Court has considered the power of the States to pass liquor control regulations that burden the Federal Government in four cases since the ratification of the Twenty-first Amendment.⁴ See Collins v. Yosemite Park & Curry Co., 304 U. S. 518 (1938); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 (1964); United States v. Mississippi Tax Comm’n, 412 U. S. 363 (1973) (Mississippi Tax Comm’n I); United States v. Mississippi Tax Comm’n, 421 U. S. 599 (1975) (Mississippi Tax Comm’n II); see also Johnson v. Yellow Cab Transit Co., 321 U. S. 383 (1944). In each of those cases, we concluded that the State has no authority to regulate in an area or over a transaction that fell outside of its jurisdiction. In Collins, we held that the Twenty-first Amendment did not give the States the power to regulate the use of alcohol within a national park over which the Federal Government had exclusive jurisdiction. In Hostetter, we held that the Twenty-first Amendment conferred no authority to license the sale of tax-free liquors at an airport for delivery to foreign destinations made under the supervision of the United States Bureau of Customs. Mississippi Tax Comm’n I held that the State had no authority to regulate a transaction between an out-of-state liquor supplier and a federal military base within the exclusive federal jurisdiction. And, in Mississippi Tax Comm’n II, we held that the State has no authority to tax directly a federal instrumentality on an enclave over which the United States exercised concurrent jurisdiction.

At the same time, however, within the area of its jurisdiction, the State has “virtually complete control” over the importation and sale of liquor and the structure of the liquor distribution system. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 110 (1980); see also Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 712 (1984); California Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). The Court has made clear that the States have the power to control shipments of liquor during their passage through their territory and to take appropriate steps to prevent the unlawful diversion of liquor into their regulated intrastate markets. In Hostetter, we stated that our decision in Collins, striking down the California Alcoholic Beverage Control Act as applied to an exclusive federal reservation, might have been otherwise if “California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory.” 377 U. S., at 333. We found that the state licensing law there under attack was unlawful because New York “ha[d] not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this cáse does not involve ‘measures aimed at preventing unlawful diversion or use of alcoholic beverages within New York.’ 212 F. Supp., at 386.” Id., at 333-334.

In Mississippi Tax Comm’n I, supra, after holding that the State could n'ot impose its normal markup on sales to the military bases, we added that “a State may, in the absence of conflicting federal regulation, properly exercise its police powers to regulate and control such shipments during their passage through its territory insofar as necessary to prevent the ‘unlawful diversion’ of liquor ‘into the internal commerce of the State.’” 412 U. S., at 377-378 (citations omitted).

The two North Dakota regulations fall within the core of the State’s power under the Twenty-first Amendment. In the interest of promoting temperance, ensuring orderly market conditions, and raising revenue, the State has established a comprehensive system for the distribution of liquor within its borders. That system is unquestionably legitimate. See Carter v. Virginia, 321 U. S. 131 (1944); California Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). The requirements that an out-of-state supplier which transports liquor into the State affix a label to each bottle of liquor destined for delivery to a federal enclave and that it report the volume of liquor it has transported are necessary components of the regulatory regime. Because liquor sold at Grand Forks and Minot Air Force Bases has been purchased directly from out-of-state suppliers, neither the markup nor the state taxes paid by liquor wholesalers and retailers in North Dakota is reflected in the military purchase price. Moreover, the federal enclaves are not governed by state laws with respect to the sale of intoxicants; the military establishes the type of liquor it sells, the minimum age of buyers, and the days and times its package stores will be open. The risk of diversion into the retail market and disruption of the liquor distribution system is thus both substantial and real.⁵ It is necessary for the State to record the volume of liquor shipped into the State and to identify those products which have not been distributed through the State’s liquor distribution system. The labeling and reporting requirements unquestionably serve valid state interests.⁶ Given the special protection afforded to state liquor control policies by the Twenty-first Amendment, they are supported by a strong presumption of validity and should not be set aside lightly. See, e. g., Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 714.

Ill

State law may run afoul of the Supremacy Clause in two distinct ways: The law may regulate the Government directly or discriminate against it, see McCulloch v. Maryland, 4 Wheat. 316, 425-437 (1819), or it may conflict with an affirmative command of Congress. See Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); see also Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 712-713 (1985). The Federal Government’s attack on the regulations is based on both grounds of invalidity.

The Government argues that the state provisions governing the distribution of liquor by out-of-state shippers “regulate” governmental actions and are therefore invalid directly under the Supremacy Clause. The argument is unavailing. State tax laws, licensing provisions, contract laws, or even “a statute or ordinance regulating the mode of turning at the corner of streets,” Johnson v. Maryland, 254 U. S. 51, 56 (1920), no less than the reporting and labeling regulations at issue in this case, regulate federal activity in the sense that they make it more costly for the Government to do its business. At one time, the Court struck down many of these state regulations, see Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 222 (1928) (state tax on military contractor); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (tax on federal employee); Gillespie v. Oklahoma, 257 U. S. 501 (1922) (tax on lease of federal property); Weston v. City Council of Charleston, 2 Pet. 449 (1829) (tax on federal bond), on the theory that they interfered with “the constitutional means which have been legislated by the government of the United States to carry into effect its powers.” Dobbins, 16 Pet., at 449. Over 50 years ago, however, the Court decisively rejected the argument that any state regulation which indirectly regulates the Federal Government’s activity is unconstitutional, see James v. Dravo Contracting Co., 302 U. S. 134 (1937), and that view has now been “thoroughly repudiated.” South Carolina v. Baker, 485 U. S. 505, 520 (1988); see also California Board of Equalization v. Sierra Summit, Inc., 490 U. S. 844, 848 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 174 (1989).

The Court has more recently adopted a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign’s legislative authority and respectful of the primary role of Congress in resolving conflicts between the National and State Governments. See United States v. County of Fresno, 429 U. S. 452, 467-468 (1977); cf. Garcia v. San Antonio Metropolitan Transit Auth., 469 U. S. 528 (1985). Whatever burdens are imposed on the Federal Government by a neutral state law regulating its suppliers “are but normal incidents of the organization within the same territory of two governments.” Helvering v. Gerhardt, 304 U. S. 405, 422 (1938); see also South Carolina v. Baker, 485 U. S., at 520-521; Penn Dairies, Inc. v. Milk Control Comm’n of Pennsylvania, 318 U. S. 261, 271 (1943); Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 487 (1939). A state regulation is invalid only if it regulates the United States directly- or discriminates against the Federal Government or those with whom it deals. South Carolina v. Baker, 485 U. S., at 523; County of Fresno, 429 U. S., at 460. In addition, the question whether a state regulation discriminates against the Federal Government cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory “with regard to the economic burdens that result.” Washington v. United States, 460 U. S. 536, 544 (1983). Claims to any further degree of immunity must be resolved under principles of congressional pre-emption. See, e. g., Penn Dairies, Inc. v. Milk Control Comm’n, 318 U. S., at 271; James v. Dravo Contracting Co., 302 U. S., at 161.⁷

Application of these principles to the North Dakota regulations demonstrates that they do not violate the intergovernmental immunity doctrine. There is no claim in this case, nor could there be, that North Dakota regulates the Federal Government directly. See United States v. New Mexico, 455 U. S. 720 (1982); Hancock v. Train, 426 U. S. 167 (1976); Mississippi Tax Comm’n II, 421 U. S., at 608-610; Mayo v. United States, 319 U. S. 441, 447 (1943). Both the reporting requirement and the labeling regulation operate against suppliers, not the Government, and concerns about direct interference with the Federal Government, see City of Detroit v. Murray Corp. of America, 355 U. S. 489, 504-505 (1958) (opinion of Frankfurter, J.), therefore are not implicated. In this respect, the regulations cannot be distinguished from the price control regulations and taxes imposed on Government contractors that we have repeatedly upheld against constitutional challenge. See United States v. City of Detroit, 355 U. S. 466 (1958); Penn Dairies, Inc., 318 U. S., at 279-280; Alabama v. King & Boozer, 314 U. S. 1, 8 (1941).⁸

Nor can it be said that the regulations discriminate against the Federal Government or those with whom it deals. The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government. McCulloch v. Maryland, 4 Wheat., at 425-437.⁹ Since a regulation imposed on one who deals with the Government has as much potential to obstruct governmental functions as a regulation imposed on the Government itself, the Court has required that the regulation be one that is imposed on some basis unrelated to the object’s status as a Government contractor or supplier, that is, that it be imposed equally on other similarly situated constituents of the State. See, e. g., United States v. County of Fresno, 429 U. S., at 462-464. Moreover, in analyzing the constitutionality of a state law, it is not appropriate to look to the most narrow provision addressing the Government or those with whom it deals. A state provision that appears to treat the Government differently on the most specific level of analysis may, in its broader regulatory context, not be discriminatory. We have held that “[t]he State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.” Washington v. United States, 460 U. S., at 544-545.¹⁰

The North Dakota liquor control regulations, the regulatory regime of which the Government complains, do not disfavor the Federal Government but actually favor it. The labeling and reporting regulations are components of an extensive system of statewide regulation that furthers legitimate interests in promoting temperance and controlling the distribution of liquor, in addition to raising revenue. The system applies to all liquor retailers in the State. In this system, the Federal Government is favored over all those who sell liquor in the State.' All other liquor retailers are required to purchase from state-licensed wholesalers, who are legally bound to comply with the State’s liquor distribution system. N. D. Cent. Code §5-03-01.1 (1987). The Government has the option, like the civilian retailers in the State, to purchase liquor from licensed wholesalers. However, alone among retailers in the State, the Government also has the option to purchase liquor from out-of-state wholesalers if those wholesalers comply with the labeling and reporting regulations. The system does not discriminate “with regard to the economic burdens that result.” Washington, 460 U. S., at 544. A regulatory regime which so favors the Federal Government cannot be considered to discriminate against it.

• IV

The conclusion that the labeling regulation does not violate the intergovernmental immunity doctrine does not end the inquiry into whether the regulation impermissibly interferes with federal activities. Congress has the power to confer immunity from state regulation on Government suppliers beyond that conferred by the Constitution alone, see, e. g., United States v. New Mexico, 455 U. S., at 737-738; Penn Dairies, Inc., 318 U. S., at 275, even when the state regulation is enacted pursuant to the State’s powers under the Twenty-first Amendment. Capital Cities Cable, Inc. v. Crisp, 467 U. S., at 713. But when the Court is asked to set aside a regulation at the core of the State’s powers under the Twenty-first Amendment, as when it is asked to recognize an implied exemption from state taxation, see Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U. S. 182, 191 (1987), it must proceed with particular care. Capital Cities Cable, 467 U. S., at 714. Congress has not here spoken with sufficient clarity to pre-empt North Dakota’s attempt to protect its liquor distribution system.

The Government’s claim that the regulations are preempted rests upon a federal statute and federal regulation. The federal statute is 10 U. S. C. §2488, which governs the procurement of alcoholic beverages by nonappropriated fund instrumentalities. It provides simply that purchases of alcoholic beverages for resale on military installations “shall be made from the most competitive source, price and other factors considered,” § 2488(a)(1), but that malt beverages and wine shall be purchased from sources within the State in which the installation is located. It may be inferred from the latter provision as well as from the provision, elsewhere in the Code, that alcoholic beverages purchased for resale in Alaska and Hawaii must be purchased in state, Act of Oct. 30, 1986, Pub. L. 99-591, §9090, 100 Stat. 3341-116, that Congress intended for the military to be free in the other 48 States to purchase liquor from out-of-state wholesalers. It follows that the States may not directly restrict the military from purchasing liquor out of state. That is the central lesson of our decisions in Paul v. United States, 371 U. S. 245 (1963); United States v. Georgia Public Service Comm’n, 371 U. S. 285 (1963); Public Utilities Comm’n of California v. United States, 355 U. S. 534 (1958); and Leslie Miller, Inc. v. Arkansas, 352 U. S. 187 (1956), in which we invalidated state regulations that prohibited what federal law required. We stated in Paul that there was a “collision . . . clear and acute,” between the federal law which required competitive bidding among suppliers and the state law which directly limited the extent to which suppliers could compete. 371 U. S., at 253.

It is one thing, however, to say that the State may not pass regulations which directly obstruct federal law; it is quite another to say that they cannot pass regulations which incidentally raise the costs to the military. Any number of state laws may make it more costly for the military to purchase liquor. As Chief Judge Lay observed in dissent, “[c]ompliance with regulations regarding the importation of raw materials, general operations of the distillery or brewery, treatment of employees, bottling, and shipping necessarily increase the cost of liquor.” 856 F. 2d, at 1116. Highway tax laws and safety laws may make it more costly for the military to purchase from out-of-state shippers.

The language used in the 1986 procurement statute does not expressly pre-empt any of these state regulations or address the problem of unlawful diversion of liquor from military bases into the civilian market. It simply states that covered alcoholic beverages shall be obtained from the most competitive source, price and other factors considered. As the District Court observed, however, “‘[IJowest cost’ is a relative term.” 675 F. Supp., at 557. The fact that the reporting and labeling regulations, like safety laws or minimum wage laws, increase the costs for out-of-state shippers does not prevent the Government from obtaining liquor at the most competitive price, but simply raises that price. The procurement statute does not cut such a wide swath through state law as to invalidate the reporting and labeling regulations.

In this case the most competitive source for alcoholic beverages are out-of-state distributors whose prices are lower than those charged by North Dakota wholesalers regardless of whether the labeling and reporting requirements are enforced. The North Dakota regulations, which do not restrict the parties from whom the Government may purchase liquor or its ability to engage in competitive bidding, but at worst raise the costs of selling to the military for certain shippers, do not directly conflict with the federal statute.

V

The DoD regulation restates, in slightly different language,¹¹ the statutory requirement that distilled spirits be “procured from the most competitive source, price and other factors considered,” but it does not purport to carry a greater pre-emptive power than the statutory command itself. It is Congress — not the DoD — that has the power to pre-empt otherwise valid state laws, and there is no language in the relevant statute that either pre-empts state liquor distribution laws or delegates to the DoD the power to pre-empt such state laws.¹²

Nor does the text of the DoD regulation itself purport to pre-empt any state laws. See California Coastal Comm’n v. Granite Rock Co., 480 U. S. 572, 583 (1987); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S., at 717-718. It directs the military to consider various factors in determining “the most advantageous contract, price and other considered factors,” but that command cannot be understood to pre-empt state laws that have the incidental effect of raising costs for the military. Indeed, the regulation specifically envisions some regulation by state law, for it provides that the Department “shall cooperate with local [and] state . . . officials ... to the degree that their duties relate to the provisions of this chapter.” The regulation does admonish that such cooperation should not be construed as an admission that the military is obligated to submit to state control or required to buy from suppliers located within the State or prescribed by the State. The North Dakota regulations, however, do not require the military to submit to state control or to purchase alcoholic beverage from suppliers within the State or prescribed by the State. The DoD regulation has nothing to say about labeling or reporting by out-of-state suppliers.

When the Court is confronted with questions relating to military discipline and military operations, we properly defer to the judgment of those who must lead our Armed Forces in battle. But in questions relating to the allocation of power between the Federal and State Governments on civilian commercial issues, we heed the command of Congress without any special deference to the military’s interpretation of that command.

The present record does not establish the precise burdens the reporting and labeling regulations will impose on the Government, but there is no evidence that they will be substantial. The reporting requirement has been in effect since 1978 and there is no evidence that it has caused any supplier to raise its costs or stop supplying the military. Although the labeling regulation has caused a few suppliers either to adjust their prices or to cease direct shipments to the bases, there has been no showing that there are not other suppliers willing to enter the market and there is no indication that the Government has made any attempt to secure other out-of-state suppliers. The cost of the labels is approximately three to five cents if purchased from the state treasurer, and the distillers have the right to print their own labels if they prefer. App. 34. Even in the initial stage of enforcing the requirement for the two bases in North Dakota, various distillers and suppliers have already notified the state treasurer that they intend to comply with the new regulations. Ibid. And, even if its worst predictions are fulfilled, the military-will still be the most favored customer in the State.

It is Congress, not this Court, which is best situated to evaluate whether the federal interest in procuring the most inexpensive liquor outweighs .the State’s legitimate interest in preventing diversion. Congress has already effected a compromise by excluding beer and wine and the States of Hawaii and Alaska from the 1986 statute. It may also decide to prohibit labels entirely or prescribe their use on a nationwide basis. It would be both an unwise and an unwarranted extension of the intergovernmental immunity doctrine for this Court to hold that the burdens associated with the labeling and reporting requirements — no matter how trivial they may prove to be — are sufficient to make them unconstitutional. The judgment of the Court of Appeals is reversed.

It is so ordered.

1 Congress kept the rule requiring in-state purchases of distilled spirits for installations in Hawaii and Alaska and of beer and wine for installations throughout the United States. Act of Oct. 30, 1986, Pub. L. 99-591, §9090, 100 Stat. 3341-116.

2 The parties stipulated to concurrent jurisdiction but offered no further information. App. 16. A territory under concurrent jurisdiction is generally subject to the plenary authority of both the Federal Government and the State for the purposes of the regulation of liquor as well as the exercise of other police powers. See, e. g., United States v. Mississippi Tax Comm’n, 412 U. S. 363, 379-380 (1973); James v. Dravo Contracting Co., 302 U. S. 134, 141-142 (1937); Surplus Trading Co. v. Cook, 281 U. S. 647, 650-651 (1930). The parties have not argued that North Dakota ceded its authority to regulate the importation of liquor destined for federal bases.

3 The five are Heublein, Inc., James B. Beam, Joseph Seagram & Sons, Inc., Somerset Importers, and Hiram Walker & Sons, Inc. App. 26.

4 Section 2 of the Twenty-first Amendment provides:

“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.”

5 A member of the National Conference of State Liquor Administrators executed an affidavit describing the following types of misconduct that North Dakota liquor regulations are intended to prevent:

“a. Diversion of alcohol off a federal enclave in Hawaii by a dependent of a Department of Defense employee in quantities large enough to supply the dependent’s own liquor store in the private sector.

“b. Loss of quantities of alcohol from the time the supplier delivered the product to the Department of Defense personnel to the time when the product was to be inventoried or taken by Department of Defense personnel to another facility.

“c. Purchases of alcohol is [sic] quantities so large that the only logical explanation is that the alcohol was diverted from the military base into a state’s stream of commerce. This occurred in the state of Washington as documented by the Washington State Liquor Control Board’s February 20, 1987, letter to Mr. Chapman Cox, Assistant Secretary of Defense at the Pentagon in Washington, D. C. A copy of that letter is attached hereto as Attachment 1. The Washington State Liquor Control Board letter describes purchases of alcohol in quantities so large that on-base personnel would have had to individually consume 85 cases each during the fiscal year 1986. This amounts to 1,020 bottles or approximately 5 bottles per person per day, including Sundays and holidays.” App. 36.

6 Cf. Rice v. Rehner, 463 U. S. 713, 724 (1983) (“The State has an unquestionable interest in the liquor traffic that occurs within its borders”).

7 Thus, for example, in Public Utilities Comm’n of California v. United States, 355 U. S. 534 (1958), we put to one side “eases where, absent a conflicting federal regulation, a State seeks to impose safety or other requirements on a contractor who does business for the United States.” Id., at 543. We invalidated the state law because there was a clear conflict between the state policy of regulation of negotiated rates and the federal policy, expressed in statute and regulation, of negotiated rates. Id., at 544. Similarly, in Leslie Miller, Inc. v. Arkansas, 352 U. S. 187 (1956), the state licensing law came into direct conflict with “the action which Congress and the Department of Defense ha[d] taken to insure the reliability of persons and companies contracting with the Federal Government.” Id., at 190. Paul v. United States, 371 U. S. 245 (1963), involved the Armed Services Procurement Act and regulations promulgated thereunder. We stated that the collision between the federal policy, expressed in these laws, and the state policy was “clear and acute.” Id., at 253. In United States v. Georgia Public Service Comm’n, 371 U. S. 285 (1963), we relied upon the passage by Congress of the Federal Property and Administrative Services Act, which spoke too clearly to permit any state regulation of competitive bidding or negotiation.

In discussing why it was proper to convene a three-judge court, the Court in Georgia Public Service Comm’n did state: “Direct conflict between a state law and federal constitutional provisions raises of course a question under the Supremacy Clause but one of broader scope than where the alleged conflict is only between a state statute and a federal statute that might be resolved by the construction given either the state or the federal law.” Id., at 287 (citing Kesler v. Department of Public Safety of Utah, 369 U. S. 153 (1962)). That statement constituted an explanation for the assertion of jurisdiction, not an expression of a general principle of implied intergovernmental immunity. Under 28 U. S. C. § 2281 (1970 ed.), a three-judge court was required whenever a state statute was sought to be enjoined “upon the ground of the unconstitutionality of such statute”; Kesler held that such a court was required, and the Constitution was implicated, when the conflicting state and federal laws were clear. Georgia Public Service Comm’n raised a “broader” question because it could not “be resolved by the construction given either the state or the federal law.” 371 U. S., at 287. In Swift & Co. v. Wickham, 382 U. S. 111 (1965), we overruled Kesler and explained that the variant of Supremacy Clause jurisprudence there discussed was that which is implicated when “a state measure conflicts with a federal requirement.” 382 U. S., at 120.

8 Justice Brennan would strike down the labeling regulation because it subjects the military to special surcharges and forces it to pay higher instate prices. Post, at 458. Yet, he would uphold the reporting requirement, whose costs are also a component of the out-of-state supplier’s expenses, presumably on the grounds that there has been no showing that those costs have been passed on to the military. Post, at 464, n. 9. Whereas five companies stopped supplying the military after the labeling regulation went into effect and a sixth raised prices by as much as $20.50 per case, post, at 458, the Government introduced no evidence that the reporting regulation interfered with the military’s policy of purchasing from the most competitive source. Post, at 464, n. 9. Justice Brennan’s test contains no standard by which “burdensomeness” may be measured. Would a state regulation that forced one company to stop dealing with the Government be invalid? What about a regulation that raised prices to the military, not by $20.50, but by $5 a ease? We prefer to rely upon our traditional standai’d of “burden” — that specified by Congress and, in its absence, that which exceeds the burden imposed on other comparably situated citizens of the State — and decline to embark on an approach that would either result in the invalidation or the trial, by some undisclosed standard, of every state regulation that in any way touched federal activity.

9 “The danger of hindrance of the Federal Government in the use of its property, resulting in erosion of the fundamental command of the Supremacy Clause, is at its greatest when the State may, through regulation or taxation, move directly against the activities of the Government.” City of Detroit v. Murray Corp. of America, 355 U. S. 489, 504 (1958) (opinion of Frankfurter, J.).

10 In our opinion in Washington v. United States, we made the following comment on our holding in United States v. County of Fresno, 429 U. S. 452 (1977):

“We rejected the United States’ contention that the tax system discriminated against lessees of federal property. Because the economic burden of a tax imposed on the owner of nonexempt property is ordinarily passed on to the lessee, we explained that those who leased property from the Federal Government were no worse off than their counterparts in the private sector. 429 U.' S., at 464-465.” 460 U. S., at 543.

11 See swpra, at 427-428. The fact that this regulation was promulgated in 1982 makes it rather clear that it was not intended to address the problem of labeling or reporting regulations or otherwise to enlarge the authority to make out-of-state purchases as permitted by the 1986 statute.

12 The statute pursuant to which the DoD regulation was promulgated does not even speak to the purchase of liquor by the military. It provides in part:

“The Secretary of Defense is authorized to make such regulations as he may deem to be appropriate governing the sale, consumption, possession of or traffic in beer, wine, or any other intoxicating liquors to or by members of the Armed Forces ... at or near any camp, station, post, or other place primarily occupied by members of the Armed Forces . . . .” 65 Stat. 88, 50 U. S. C. App. §473 (1982 ed.).