Let’s have a toast to the Supreme Court.
The nation’s highest court is re-examining a 158-year-old law that could change how some Americans enjoy their liquor.
According to The Washington Times, the justices announced Monday that they will hear a challenge to an 1868 federal law prohibiting home distilling.
The dispute centers on Congress's taxing authority and the Constitution's Necessary and Proper Clause, which gives lawmakers the power to enact laws necessary and proper for carrying out their enumerated powers. The justices granted the Trump administration's petition to review Department of Justice v. McNutt, in which the 5th Circuit struck down the prohibition earlier this year.
The federal government argues that banning home distilling helps prevent tax evasion. A federal appeals court disagreed, ruling in April that Congress exceeded its taxing authority by prohibiting home distilling simply because allowing it could make tax evasion easier.
Solicitor General D. John Sauer, representing the Trump administration, defended the restriction in the government's petition:
“Congress restricted home distilling 160 years ago in response to an extensive history of evasion of the distilled-spirits tax. The government has a substantial interest in its authority to safeguard a significant source of tax revenue — a source that was used to pay Revolutionary War debts at the Founding and now generates billions of dollars in tax revenue every year.”
Sauer argued that home distilleries are difficult to monitor, making the prohibition a legitimate means of protecting federal tax collections.
But Fifth Circuit Judge Edith Hollan Jones saw a constitutional problem with that reasoning.
“Under the government’s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity.”
That's the spirit of the case. If Congress has the power to tax an activity, does it also have the power to criminalize that activity entirely because allowing it might make tax collection more difficult?
The answer could have consequences far beyond homemade liquor.
The Constitution grants Congress the power to lay and collect taxes. The Necessary and Proper Clause permits legislation carrying those powers into execution.
But the dispute asks where that authority ends. The challengers argue that preventing potential tax evasion cannot become a blank check to criminalize private conduct at home.
The issue has produced a split among federal appeals courts. As Fox News reported, Ohio home-brewing enthusiast John Ream brought a separate challenge after discovering that federal law prohibited him from distilling small quantities of liquor for himself and his wife.
Ream, a former aerospace engineer and brewery owner, had spent years brewing beer before becoming interested in making spirits.
His attorney, Robert Alt, explained the legal contradiction: "It is perfectly legal to make beer at home or to make wine at home, but if you make even a single ounce of distilled spirits at home, it is a federal felony."
The Sixth Circuit rejected Ream's challenge, while the Fifth Circuit reached the opposite conclusion in another case.
Alt described the larger constitutional issue this way: "To what extent can Congress regulate local non-commercial otherwise lawful [activity] that you engage in, in your very home?"
"That really is the core question in this case."
The history is fascinating. Federal liquor taxes date to 1791 and helped spark the Whiskey Rebellion during George Washington's presidency. Congress enacted the home-distilling restriction in 1868 as part of its effort to combat tax evasion.
More than a century and a half later, the Supreme Court must confront whether the federal government's authority to collect revenue also allows it to ban an activity that might interfere with that revenue.
For advocates of limited government, that's a much bigger question than whether Americans should be allowed to make their own liquor. (No offense, bourbon drinkers.)
The Necessary and Proper Clause was intended to enable Congress to exercise its constitutional powers, not necessarily to create unlimited authority over private life.
As Alt put it: "This would be a wonderful opportunity to raise a glass to freedom and to limited government."
The constitutional question at stake here isn't whether Washington can tax your whiskey. It's whether Washington can ban you from making it simply because doing so might make tax collection more difficult.
Editor's Note: Unelected federal judges are obstructing President Trump's agenda and ignoring the will of the people.
Help us expose out-of-control judges determined to halt President Trump's mandate for change. Join RedState VIP and use promo code FIGHT to receive 60% off your membership.
Join the Conversation
VIP members get the ability to comment on articles.