Supreme Court to review 158-year-old law banning home distilling
by Stephen Dinan · The Washington TimesThe Supreme Court said Monday it will hear a case challenging the 1868 law that bans home distilling, in a case that tests how much power Congress can claim under the Constitution’s Necessary and Proper Clause.
The case has become a cause celebre in some libertarian-leaning corners, with opponents of the law calling the ban un-American.
“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,” said Robert Alt, president of the Buckeye Institute, which has argued against the federal ban on behalf of Scott McNutt, the home distiller who challenged the law.
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Mr. McNutt prevailed in lower courts, with a circuit court ruling earlier this year that the federal ban stretches that clause too far and the law must fall.
The Trump administration has asked the justices to uphold the law, saying the government needs the money that comes from taxing official distilleries and allowing home operations would undercut that.
“Congress restricted home distilling 160 years ago in response to an extensive history of evasion of the distilled-spirits tax. The government has a substantial interest in its authority to safeguard a significant source of tax revenue — a source that was used to pay Revolutionary War debts at the Founding and now generates billions of dollars in tax revenue every year,” Solicitor General D. John Sauer told the court in his petition asking for the case to be heard.
He said the home ban is a valid exercise of Congress’s taxing power and the Constitution’s Necessary and Proper Clause, which gives Capitol Hill power to enact any law deemed important to carrying out Congress’s enumerated duties.
It is sometimes known as the Elastic Clause, thanks to creative stretching by Congress.
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Without the ban, it would undercut the taxes because home stills are too easy to conceal, Mr. Sauer argued.
The 5th U.S. Circuit Court of Appeals disagreed in its ruling in April.
Circuit Judge Edith Hollan Jones said the government’s interpretation of its taxing power is too extreme. She said the power can only reach the activity that is happening, but cannot forbid something from happening at all.
“Under the government’s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity,” Judge Jones wrote.
Mr. McNutt owns a still and says he had tinkered around with spirits. He was served a warning in 2014 not to attempt home distillation.
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In 2023 he sought a permit from the Treasury Department’s Alcohol & Tobacco Tax and Trade Bureau but was told no such permit is available for home distillation. That spurred his lawsuit.
He won at both the district and circuit court levels.
But the 6th U.S. Circuit Court of Appeals, in a decision on another case, has upheld the law as valid under the Necessary and Proper Clause.
The federal ban applies to distilled spirits. Federal law explicitly exempts home brewing and wine-making for personal consumption from licensing and tax requirements.
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Stephen Dinan
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