The Supreme Court agreed Oct. 19 to decide whether Congress can ban people from distilling spirits at home, a federal prohibition that dates to 1868 and carries up to five years in prison. The case is No. 26-204, Department of Justice v. McNutt, according to the docket. The ban started with a one-sentence proposal nobody explained. A Massachusetts representative introduced it in 1866, Congress adopted it without reported debate and reenacted it in 1868, the hobbyists’ lawyers wrote in their brief. A 158-year-old tax-evasion rule is now the test of how far Congress’s taxing power reaches.
What the Federal Law Prohibits
Federal law makes it a crime to use or possess a still in a dwelling house or a connected shed, yard or enclosure to produce spirits, and it bars registering a home as a distillery. Violations carry fines of up to $10,000, up to five years in prison, or both, per offense, and the law makes the home and its contents subject to forfeiture, according to the brief.
The brief says federal law has no exemption for spirits made for personal or family use. The challengers are members of the Hobby Distillers Association, which Rick Morris founded in 2014 and which had about 1,300 members as of 2024. They want to distill as a hobby. One plaintiff said he wants to create spirits including “apple pie vodka.”
Why the Fifth and Sixth Circuits Disagree
The Fifth Circuit ruled for the hobbyists on April 10 in a unanimous decision, holding the ban falls “outside the scope of Congress’s taxing power” because it raises no revenue and reduces revenue by stopping people from making taxable spirits. The Sixth Circuit split on April 21 in Ream v. Department of the Treasury and upheld the same provisions as a valid use of the Necessary and Proper Clause, the Congressional Research Service reported.
The government’s petition says that “restricting the location of distilled-spirits plants thus directly promotes collection of the distilling tax.” Solicitor General D. John Sauer argues that home stills are easier to hide and harder to inspect than licensed plants. The government has dropped a Commerce Clause theory it argued earlier, so the case now turns on the taxing power and the Necessary and Proper Clause alone.
The 1867 Report and the Tax Behind the Ban
The history supports the government’s story of evasion. A congressionally commissioned report found in 1867 that at least seven-eighths of spirits went untaxed, largely because a tax of $2 per gallon exceeded market prices, the brief says. The current federal excise tax is $13.50 per proof gallon, the Congressional Research Service reported.
That is 6.75 times the 1868-era rate, a calculation from the two figures, though a proof gallon and a gallon are not identical units. The hobbyists’ answer is that a rule with no limiting principle could reach any private conduct near a taxed product. The government’s answer is that Congress made a reasonable judgment about enforcement.
What Happens Next
The Court granted the government’s petition in McNutt. Briefing follows, and a decision is normally due by the end of the term next summer.
