The Washington Post first published this opinion piece.
 
For more than 150 years, the federal government has prohibited hobbyists and home distillers from making moonshine, applejack and other spirits. Outside of a group of enthusiasts
advocating the legalization of home distilling, this corner of federal law is largely unknown. But the effort to legalize homemade booze has ramifications that spill beyond the domain of drinkers and brewers. Two recent federal circuit court decisions have teed up a likely Supreme Court fight over the ban that could shape the boundaries of government power. 

The federal government’s ban on home distilling stems from a 19th-century push to tax alcohol and tobacco. In 1868, Congress prohibited the distillation of consumable spirits from “any still, boiler, or other vessel … in any dwelling house.” The law remains in effect, and breaking it can result in fines of up to $10,000 and five years in prison. In 2024, John Ream, a brewery owner from Ohio who wants to distill his own spirits for personal consumption, filed a lawsuit arguing the federal ban was unconstitutional. A prior suit was launched in 2023 by fellow would-be home distillers. In April, both cases came to a head with dueling federal circuit court decisions — one upholding the ban and one striking it down.

While it might be easy to write these cases off as advocacy for a niche cause involving a handful of aspiring hobby distillers, the outcome will carry serious constitutional implications. That’s because the federal government has advanced two alarming arguments in defense of its distillation ban. First, it claims that the ban is justified as a “necessary and proper” exercise of the government’s taxing power under the Constitution. Second, it asserts that the ban is permissible under the Constitution’s commerce clause, which empowers Congress to regulate economic activity “among the several states.”

Congress has the long-recognized power to “lay and collect taxes” to fund the federal government. But a prohibition is not a tax, and Congress’s taxing power alone does not give it the ability to ban something outright. However, Congress can “make all laws which shall be necessary and proper” for exercising its other enumerated powers. According to the government, tax evasion was widespread at the time of the law’s passage in the 1860s, which made limiting where distillation could take place “necessary and proper” to ensure effective revenue generation and to limit tax dodging.

In other words, the government is arguing that prohibiting home distillation is essential for the feds to be able to collect excise taxes on distilled spirits.

But that argument is ironically self-defeating: If distillation were not prohibited, it could be taxed. Banning it therefore undermines the government’s ability to tax the activity, making it difficult to see how it could be required for raising revenue. This position inherently lacks a limiting principle: If Congress can prohibit an activity under the guise that doing so is “necessary and proper” for effectively taxing it, what would Congress not be able to prohibit?

As the U.S. Court of Appeals for the 5th Circuit noted in striking down the ban, the government’s logic would suggest that Congress can “criminalize nearly any at-home conduct,” warning that home-based businesses “may be forbidden” and remote work “may be deemed a crime.” Even home baking or home gardening could theoretically be banned under this line of argument.

The government’s backup defense of its home-distilling prohibition is the aforementioned commerce clause. In modern times, federal courts have stretched the clause far beyond its original meaning, allowing it to reach the home production of commodities such as wheat, so long as there might be a speculative, indirect effect on national markets.

But as with the necessary and proper clause, the commerce clause demands a limiting principle. In past litigation, the Supreme Court has signed off on Congress’s prohibition of activities like home-growing marijuana, on the grounds that banning its cultivation in a basement or backyard is part of a comprehensive regulatory scheme for drugs. But since Prohibition’s repeal, the feds have had relatively little to do with alcohol regulation, with the vast bulwark of rules involving alcohol at the state and local level.

It’s been nearly 15 years since NFIB v. Sebelius, when the court was asked whether allowing Congress to force people to buy health insurance pursuant to the commerce clause meant that it could also force people to buy other products, such as broccoli. Now, the justices are being asked to grapple with a similar question: If the federal government can use the commerce clause to bar home-based activities that are predominantly regulated by other levers of government, what clear limiting principle is there on its power? For instance, could something as minor as IRS regulations concerning the home-office deduction on annual taxes be used to justify a federal crackdown on remote work? 

The two recent conflicting federal court decisions have left this issue unsettled. Given the circuit split — and the stakes at play in terms of constitutional principles — it seems likely that the Supreme Court will agree to take up the case.

If the high court does, Americans may soon be hearing a lot more about home distillation. The federal government’s arguments show that it’s drunk on power. It should sober up. 

Jarrett Dieterle is a legal policy fellow at the Manhattan Institute.