A Reconstruction-era statute makes it a federal crime to distill spirits at home, even for personal use. On Monday, the Supreme Court agreed to consider whether Congress had the constitutional authority to impose that ban more than 150 years ago.
On paper, the case is about liquor. In practice, it turns on how far Congress can go when it legislates in the name of taxation, and whether restricting the location of an activity inside private homes fits within Congress’s constitutional powers.
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The law
Federal law prohibits distilling spirits in a private home. Violating that ban is punishable by up to five years in prison and a $10,000 fine.
The plaintiffs challenging the prohibition say the 1868 law is an antiquated relic of Reconstruction-era politics. They argue that Congress overstepped its taxation powers when it enacted the home distilling ban as part of a tax reform measure designed to curb fraud by commercial distillers.
Government attorneys respond that Congress properly restricted where spirits can be distilled to prevent producers from evading federal excise taxes. They also warn that lifting the ban would violate Supreme Court precedent and erode congressional powers.
How it got here
Separate challenges to the law divided two federal appeals courts, which issued conflicting decisions in April, only 11 days apart.
- A three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld the federal ban in a case brought by John Ream, a brewpub owner from Newark, Ohio, who wants to distill whisky at home for his personal consumption.
- A panel of the Fifth Circuit ruled in favor of different plaintiffs, members of the Texas-based Hobby Distillers Association, and concluded that statutory prohibitions on in-home distilling are outside the scope of Congress’s taxing power under the Constitution.
The Supreme Court agreed to review the Fifth Circuit decision, which was the Justice Department’s preference. The Sixth Circuit ruling remains on the books as the conflicting decision.
The taxing power
The plaintiffs’ core claim is structural. Congress may tax distilled spirits, they argue, but it does not automatically follow that Congress may criminalize the location of at-home distilling for personal consumption under the banner of tax administration.
The Justice Department’s defense runs through enforcement. Federal lawyers say the government’s regulation and taxation on the production of distilled spirits is as old as Congress itself, and that Congress outlawed home distilling to prevent those producers from evading taxes or government inspections.
What is at stake
Attorneys for the plaintiffs in both cases argue that Congress could ban a broad array of activities inside private homes, including cooking, gardening, and remote work, under the government’s interpretation of the 19th century law.
In their Supreme Court filing, the plaintiffs’ lawyers wrote: “The importance of this case and the questions it presents could hardly be overstated. It presents fundamental questions of the extent of federal power and the powers reserved to the states and the people.”
The government disputes the slippery-slope implications and points to history. Justice Department attorneys wrote that, because the location restrictions were enacted only after lengthy experience with tax evasion, upholding those restrictions “would not open the door” to hypothetical laws restricting other conduct lacking that history.
The questions for the Court
The briefing also reflects a fight about what issues should be in the case at all.
The government told the justices that Ream asked them to resolve an additional question: whether location restrictions on home distilling exceed Congress’s power to regulate interstate commerce. The Justice Department urged the Court to avoid that question, saying it wasn’t part of Ream’s case or the government’s current arguments in either case.
What a lawyer says
Robert Alt, an attorney for the plaintiffs, said they are “thrilled” the Supreme Court agreed to hear the case and framed the home-distilling ban as an American tradition recast as a federal crime.
“Our country's founders would be rolling over in their graves to learn that a pastime in which even George Washington partook, which is as American as apple pie and certainly a lot older, has quite absurdly been turned into a federal crime,” Alt said in a statement.
The legal dispute now headed to the Supreme Court turns on constitutional authority. It asks what the taxing power permits Congress to do, and where the line sits between federal enforcement measures and regulation of private conduct inside the home.