Supreme Court Takes On 1868 Law That Criminalizes Home Distilling

By Daniel Okafor

The Supreme Court agreed on Monday to decide whether Congress had constitutional authority to ban home distilling under an 1868 law. The stakes are concrete. Federal law makes distilling spirits at home a crime punishable by up to five years in prison and a $10,000 fine.

The challenge targets a Reconstruction-era provision that plaintiffs call an antiquated relic. Congress enacted the ban as part of an 1868 tax reform measure designed to curb fraud by commercial distillers. The plaintiffs argue Congress overstepped its taxation powers when it extended the ban into private homes.

Government attorneys see it differently. They say 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 Did the Case Reach the Supreme Court?

Two federal circuit courts split on the question in April. The decisions came 11 days apart.

A three-judge panel of the Sixth U.S. Circuit Court of Appeals upheld the ban. That case was brought by John Ream, a brewpub owner from Newark, Ohio, who wants to distill whisky at home for personal consumption.

The Fifth Circuit panel went the other way. It ruled for members of the Texas-based Hobby Distillers Association. It concluded that statutory prohibitions on in-home distilling fall outside the scope of Congress's taxing power under the Constitution.

The Supreme Court agreed to review the Fifth Circuit decision. That was the Justice Department's preferred path.

What Do the Plaintiffs Argue?

Plaintiffs' attorney Robert Alt said they are "thrilled" that the Supreme Court agreed to hear the case.

"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 plaintiffs' lawyers in both cases press a slippery-slope logic. Under the government's reading of the 19th century law, they argue, Congress could ban a broad array of activities inside private homes — including cooking, gardening and remote work.

"The importance of this case and the questions it presents could hardly be overstated," the plaintiffs' lawyers wrote. "It presents fundamental questions of the extent of federal power and the powers reserved to the states and the people."

What Does the Government Say?

Justice Department attorneys frame the dispute as settled history. Regulation and taxation of distilled spirits production, they say, is as old as Congress itself. Congress outlawed home distilling to prevent producers from evading taxes or government inspections.

They also reject the slippery-slope argument on its own terms. "And 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," they wrote in a filing.

There is a second question hovering over the case. The government says Ream asked the Supreme Court to resolve an "additional question" — whether location restrictions on home distilling exceed Congress's power to regulate interstate commerce. The government urged the court to skip that question. It said the issue was not part of Ream's case or the government's current arguments in either case.

Why the Ruling Could Reach Beyond Whisky

The case turns on the taxing power, not on temperance. If the Court affirms the Fifth Circuit, it would draw a line around federal authority to regulate conduct inside private homes under the tax clause. If it reverses, the 158-year-old ban stands and Congress keeps its tool for policing excise-tax evasion.

The Court's answer will shape how far future Congresses can stretch taxation authority into domestic life — a question the plaintiffs' lawyers say could hardly be overstated.