Supreme Court to hear challenge to federal ban on home distilling

Right · 2On Oct. 19 the Supreme Court agreed to hear Department of Justice v. McNutt, which asks whether Congress may bar people from distilling spirits at home. 1 2 Right · 2Federal law bars a distilled spirits plant from any dwelling house or connected shed, yard or enclosure (26 U.S.C. § 5178), a rule dating to 1868. A violation is punishable by a fine of up to $10,000 and up to five years in prison. 1 2 Right · 2Home brewing of beer and wine for personal use is permitted. The Washington Examiner's author says an adult may brew up to 100 gallons of beer a year without federal tax, and a household with two or more adults may brew 200. 1 2

Right · 2In April the 5th Circuit held the ban invalid, in an opinion by Judge Edith Jones. It found the provisions "tax nothing" and are an "anti-revenue provision" that reduce revenue rather than raise it. The Washington Examiner's author says a divided 6th Circuit upheld the ban in a separate case 11 days later, and that both courts agreed the taxing clause alone could not support it, leaving the necessary and proper clause as the point of dispute. 1 2 Right · 2The Justice Department, now under the Trump administration, wants the 5th Circuit overturned. It argues that home stills are harder to inspect and that the ban is a "necessary and proper" safeguard against tax evasion. Its petition says Congress acted "160 years ago in response to an extensive history of evasion." 1 2 Right · 2The lead respondent, Scott McNutt, is a member of the Hobby Distillers Association. He received a 2014 notice from the Treasury's tobacco tax bureau warning of possible civil and criminal liability. In November 2023 the agency told his lawyers that home distilling is illegal and that it would not consider a permit. Co-plaintiff Thomas Cowdrey wants to experiment with beverage spirits such as "apple pie vodka." 1 2

Right · 2Both writers say enforcement is sporadic. The Examiner's author cites the 6th Circuit saying the ban "apparently has not been enforced in court for a long while" even though the government "conspicuously declined to disavow enforcement." Reason notes that online retailers openly sell home stills. 1 2 Right · 1The Examiner's author expects arguments early next year and a decision by late June or early July. He notes that the grant of review decides nothing on the merits, that the Court could rule narrowly, and that the 5th Circuit never reached the commerce clause because the government did not press it on appeal. 1