The Supreme Court will weigh a nearly 160-year-old federal ban on home liquor distilling, a case hobby distillers say exceeds Congress’s taxing power.
The justices said Monday they will review the constitutionality of a federal law that bars Americans from producing distilled spirits at home for personal use, in a dispute captioned Department of Justice v. McNutt.
At stake is whether Congress can criminalize ordinary household conduct in the name of tax collection, complete with prison time and forfeiture of a family’s home. Arguments are likely next year, with a decision expected by late June or early July.
The fight reaches Washington after a federal district court sided with the challengers and the U.S. Court of Appeals for the 5th Circuit upheld most of that ruling. Both lower courts found the location ban a poor fit for the government’s claimed taxing authority.
Federal law states that a person may not produce distilled spirits at home for personal use. Anyone who uses or possesses stills or other equipment to make spirits in any dwelling house, shed, yard, or enclosure faces criminal penalties.
Violators risk fines and up to five years in prison. The home itself, and property inside it, can be forfeited. The statute offers no exception for spirits made for personal or family use.
That is the regime the Hobby Distillers Association and one of its members, McNutt, challenged. McNutt wants to distill spirits at his own home and argued the prohibition exceeds Congress’s enumerated powers, including its power to tax.
The same high court that has recently handled other high-profile matters, including when the Supreme Court rejects bid by alleged 9/11 mastermind defendants to revive vacated plea deals, now turns to this tax-and-power dispute.
The district court found the ban unconstitutional. It said the location rules “criminalize conduct of persons not subject to the tax” and don’t “touch the product to be taxed.”
The 5th Circuit largely agreed. Judges there held that limits on home distilling are not “plainly adapted” to support the government’s taxing power. The appeals court also warned about the logic of the government’s position.
"[Upholding the ban would let Congress] criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."
That warning lands with force for anyone who values limited government. If the mere chance that private activity might hide a tax event is enough to justify a criminal ban and home forfeiture, the reach of federal power grows fast.
Lawyers for the would-be distillers pressed the same point. They told the courts the ban “exceeds Congress’s power under the Taxation and Necessary and Proper Clauses of the Constitution.”
"[T]here is no limit to the government’s claim of power to criminalize local conduct that might conceal taxable activity."
Both sides urged the Supreme Court to take the case and settle the constitutional question. The justices have also been asked in other settings to police the edges of federal authority, much as when the Supreme Court takes case on whether cooking for terrorists can block asylum claims under material-support rules.
Solicitor General D. John Sauer asked the Court to reverse. He labeled the lower-court decision striking down the ban “erroneous.”
Sauer defended the statute as a long-running tool against tax evasion. He argued Congress restricted home distilling for a concrete enforcement reason.
"[A] distiller can more easily conceal a distilling operation or thwart necessary inspections, thereby evading the requisite tax, if the still is located in a dwelling-house or connected structure."
The historical record the government cites is real. Congress enacted the law in 1868 after finding widespread evasion by commercial distillers. A House report from 1867 found that “at least seven-eights” of spirits went untaxed at the time.
The tax rate then stood at $2 per gallon, more than the market price of the spirits. Commercial operators found it cheaper to bribe revenue officers than to pay what they owed. Lawmakers cut the rate and required duties to be paid before spirits left warehouses. They also locked down where stills could operate.
For more than a century, Congress has limited the location of distilling to keep tax collectors from being shut out of private dwellings. The Justice Department says that rationale still justifies the criminal ban.
Court watchers tracking the docket will note this grant alongside other recent actions, including when the Supreme Court lets stand Pentagon move that scrapped 9/11 plea agreements.
Beer and wine hobbyists already enjoy far more room under federal law. Distilled spirits do not. The plaintiffs say that gap is not a narrow tax rule. They call it a blanket criminal ban on local conduct that may never produce a taxable event at all.
The 5th Circuit underscored a further problem. Restrictions that stop people from making spirits that could later be taxed can reduce revenue rather than protect it. Banning the activity outright, the court suggested, is a blunt instrument if the true aim is collection.
Still, the government’s reply is straightforward: stills inside a house are hard to find, hard to inspect, and easy to hide. Without location limits, the tax on spirits becomes a suggestion.
That clash, enforcement necessity versus enumerated limits, is why the case matters beyond one association and one would-be home distiller. It tests how far Congress may go when it claims a measure is “necessary and proper” to a tax.
Political fights over the Court’s role continue in parallel. Proposals such as those described when Harris pushes Supreme Court expansion show how contested the institution remains. The McNutt case, by contrast, turns on text, history, and the scope of federal power, not on packing the bench.
The Supreme Court will decide whether the 1868 location ban is a valid exercise of the taxing power and the Necessary and Proper Clause, or whether it criminalizes private conduct beyond Congress’s reach.
If the lower courts are affirmed, home distillers gain constitutional breathing room and the Justice Department loses a long-used enforcement tool. If the government wins, the ban, prison exposure, home forfeiture, and all, stands as a legitimate shield for the spirits tax.
Either way, the ruling will mark how tightly the Court polices federal criminal laws that rest on the risk of hidden taxable activity inside a private home. Other recent process fights, including when the Supreme Court clears path for Trump mail-in voting order, show a Court willing to take cases that set clear rules for government power.
Americans should be able to follow the tax law without turning a kitchen hobby into a five-year felony and a forfeited house, and Congress should raise revenue without claiming a blank check over every private act that might conceal a tax.
