National Review first published this piece.

A former aerospace engineer in Newark, Ohio wants to distill a little whiskey at home, pay the tax on it, and share a glass with his wife. But federal law stands in the way: a statute bars “producing distilled spirits . . . in any dwelling house, or in any shed, yard, or inclosure connected with such dwelling house.” For his planned activity—which does not include selling a drop of the home-distilled whiskey—he could face five years in prison, a $10,000 fine, and forfeiture of his house. Doesn’t that claim of congressional power go too far?

For starters, the Constitution doesn’t explicitly empower the federal government to regulate liquor production. Nor is homemade whiskey, consumed at home and never sold, part of interstate commerce, which Congress may regulate. Unfortunately, current Supreme Court precedent has allowed significant expansion of federal power under the Necessary and Proper Clause on the theory that if something affects interstate markets its regulation may be “necessary and proper” to the regulation of interstate commerce. That same broad reading has been applied to other constitutional grants of power—in this case the government claims that because it can lay and collect taxes generally it can prohibit in-home distilleries on the theory that they provide a way to circumvent federal taxes on liquor production. It’s easy to see how this type of interpretation makes a mockery of the idea of a government with limited and enumerated powers—an issue Justice Thomas has flagged various times over the years, including most recently in the U.S. v. Hemani case this term dealing with federal gun regulations.

Our would-be whiskey distiller could provide an opportunity for the Supreme Court to reconsider this erroneous line of precedent. The Buckeye Institute has filed a cert petition in Ream v. Department of the Treasury addressing two important questions. The first is “[w]hether the federal prohibition on home distilling exceeds Congress’s enumerated powers.” The second is whether to overrule Gonzales v. Raich, the 2005 Commerce Clause decision that let Congress regulate growing and possessing marijuana for personal use entirely within one state, “or at least clarify that Congress’s commerce power does not extend to regulation of local, noncommercial conduct and that its exercise is subject to meaningful judicial scrutiny.” The Court should grant cert and take the opportunity to overrule Raich.

The statute at issue derives from an 1868 tax law enacted to address “stupendous frauds” by commercial distillers, who found it cheaper to bribe revenue officers than to pay the whiskey tax. An 1867 congressional report found reason to believe that “at least seven-eighths” of spirits went untaxed—a real problem, which the 1868 law addressed by cutting the tax rate and requiring taxes to be paid before spirits left distillery warehouses. The home-distilling prohibition at issue was adopted without reported debate.

A divided Sixth Circuit panel upheld the ban 2–1 under the Necessary and Proper Clause as a means of collecting the federal excise tax on spirits, but recognized that the law exceeds Article I’s Taxing Clause on its own. In an opinion by Judge Raymond Kethledge, the judges reasoned that the ban was “necessary” because home producers are likely to evade the tax, and “proper” because it is adapted to revenue collection and not expressly prohibited by the Constitution. (The dissent argued there was no standing and did not reach the merits.) The panel recognized the peril of “expand[ing] Congress’s power beyond its proper limits” but dismissed it based on this “factbound” case and the “sui generis” status of alcohol—even though, as the cert petition points out, the decision “cited no facts concerning the prohibition’s basis or purpose.”

Ream also forms part of a circuit split, which is an important consideration when the Supreme Court considers taking a case up. Just eleven days before that Sixth Circuit decision, the Fifth Circuit reached the opposite conclusion in McNutt v. Department of Justice, holding the home-distilling ban unconstitutional under both the Taxing Clause and the Necessary and Proper Clause. In an opinion by Judge Edith Jones, the court faithfully applied the governing standard for the Necessary and Proper Clause articulated by Chief Justice Marshall in McCulloch v. Maryland (1819): A law’s means must be “plainly adapted” to a “legitimate” end and consistent with the Constitution’s “letter and spirit.” The home-distilling ban fails that test. Its provisions “do not tax the distilled spirits or the still” at all; instead of raising revenue, they “reduce revenue by preventing individuals from making distilled spirits” in the first place. The government pointed to a licensing and regulatory regime for would-be distillers, but that law excludes home distillers, undercutting its argument.

Jones pointed out that the government’s own rationale—that home distilling can be banned because it might someday shield untaxed income—“invites a question: what cannot be banned?” Under that logic, she wrote, “Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity,” reaching home-based businesses or remote work just as easily as a still in someone’s kitchen.

As the government conceded in its unsuccessful petition for rehearing en banc in the Fifth Circuit, the Fifth and Sixth Circuit rulings are directly in conflict. That should be enough for the Supreme Court to take the case. And while neither circuit decision addressed the Commerce Clause, that was the alternative rationale the government pressed below in Ream, and the Court should take this opportunity to overrule Raich.

As Justice Thomas pointed out in his Raich dissent, the Court in that case “abandon[ed] any attempt to enforce the Constitution’s limits on federal power.” If Congress could regulate “marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana,” he warned, then Congress “can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.” Thomas asserted that the Court had abandoned original meaning to the point that it conceived of “economic” conduct it could regulate as entailing a “rewriting of the Commerce Clause” until it “covers the entire web of human activity.” (Never mind that the word “economic” appears nowhere in the Constitution’s text.) Justice O’Connor, joined by Chief Justice Rehnquist and by Thomas, made the same point: Commerce Clause jurisprudence “threatens to sweep all of productive human activity into federal regulatory reach.”

Yet as the cert petition notes, “Raich’s logic has been eroded by subsequent decisions of the Court.” NFIB v. Sebelius (2012) upheld Obamacare’s individual mandate as a tax, but it held that the mandate exceeded Congress’ power under the Commerce Clause and Necessary and Proper Clause, applying less deference than Raich and recasting that case as involving an “interstate market” that would be “substantially undercut” without regulation of intrastate activity. Sebelius and other recent precedents have narrowed Raich’s reach without saying so outright. But quiet narrowing isn’t enough, and even explicit narrowing would fall short of what’s needed: overruling a precedent that, as the cert petition notes, involved facts “strikingly similar” to Ream’s. The Court has not flinched from overruling other egregiously wrong precedents in recent terms. It should take this case and make clear that Raich is indefensible.

Carrie Campbell Severino is the president of JCN.