Will The Supreme Court Legalize Home Distilling?

Authored by Andrew M. Grossman & Robert Alt via RealClearPolicy,

Ohioan John Ream is an accomplished aerospace engineer and brewery owner. He would like to try his hand at making Bourbon. However, federal law prohibits distilling spirited beverages at home. On Monday, he filed a petition in the Supreme Court of the United States asking it to hear his case, which raises important questions about the limits of federal power.

Home distilling is, of course, as American as apple pie, and certainly a lot older. George Washington's Mount Vernon estate featured a distillery that, by 1799, was producing more than 10,000 gallons of whiskey per year. Nonetheless, Congress barred distilling inside any "dwelling house" or "shed, yard, or inclosure connected with a dwelling house" in what was, by all indications, a sop to the temperance movement. Later, Prohibition killed off what remained of craft spirits production.

The home-distilling ban ultimately survived both Prohibition and repeal, along with the distilled-spirits tax. Under the law, distilling, or even owning a set-up still, in a prohibited location like a home is punishable by fines, property forfeiture, and imprisonment. Given the draconian penalties, it's little surprise that hobby distilling has floundered while craft brewing and small-batch winemaking, both of which the law allows, have flourished.

Mr. Ream filed a lawsuit in federal court challenging whether that disparity has any lawful basis. The federal government, after all, possesses only the limited powers specified in the constitutional text. States, meanwhile, retain broad authority to legislate for the public good. This vertical separation of powers between the federal government and the states promotes accountability, responsiveness, and ultimately individual freedom.

Or it would, if the Court hadn't refashioned the Constitution's Commerce Clause, which authorizes Congress to "regulate Commerce...among the several States," and had long been understood to reach only interstate trade and the channels of such trade. But in the 1942 Wickard v. Filburn ruling, the Supreme Court eviscerated such limitations. At issue was a Soviet-inspired law capping wheat production to "rationalize" the agricultural sector and, by limiting its volume, drive up prices. Roscoe Filburn was an Ohio farmer who exceeded the imposed cap and grew enough wheat to feed both his family and the animals on his farm. The Court held that Congress may regulate any activity that, in aggregate, has a substantial effect on interstate commerce. Because widespread home-production of wheat would prevent Congress from regulating interstate prices, Congress could therefore restrict home production as part of its price-regulation scheme.

For the six decades following Wickard, the Court demurred in enforcing the Commerce Clause's limits. But by the mid-1990s, the Court appeared ready to chart a new course. First, it struck down the Gun-Free School Zones Act in a 1995 decision, United States v. Lopez, reasoning that merely carrying a gun near a school was too attenuated from interstate commerce to substantially affect it. Then the Court doubled down in United States v. Morrison (2000), which held unconstitutional a federal statute authorizing lawsuits by victims of gender-motivated violence. Morrison pared back Wickard's aggregation principle, suggesting that it applies only to inherently economic activities, and refused to defer to Congress's view on whether local activities substantially affect interstate commerce. Legal observers proclaimed a nascent "federalism revolution."

It didn't last. The promise of Lopez and Morrison was cut short by a 2005 decision, Gonzales v. Raich, upholding the Controlled Substances Act's prohibition on the home cultivation and consumption of marijuana subject to state regulation. Going well beyond Wickard, Raich applied its aggregation principle to noncommercial activity and adopted the maximally deferential "rational basis" standard for assessing Congress's need to regulate non-interstate activities. Taken on its own terms, Raich all but declares that anything goes with regard to regulation under the Commerce Clause.

One doubts that is the view of the current Court. Justice Thomas is the sole holdover from Raich, from which he dissented. His opinion explained how, if the Raich majority were right, then "the Federal Government is no longer one of limited and enumerated powers." Chief Justice Roberts wielded that same logic in his opinion holding that Obamacare's "individual mandate" to purchase health insurance was not authorized by the Commerce Clause, and the dissent joined by Justices Thomas and Samuel Alito reasoned similarly. Although the justices appointed by President Trump have not been afforded the occasion to opine on the Commerce Clause's limits, all three take seriously the Constitution's original meaning, its structural features, and the enumeration of powers as a constraint on federal power. Expect them to be more skeptical of assertions of federal authority than was the Raich majority.

John Ream's current challenge to the home-distilling ban takes aim at the excesses of Raich, and would be a meaningful first step toward rekindling the federalism revolution.

The U.S. Court of Appeals for the Sixth Circuit upheld the home-distilling prohibition, ruling that the ban, while not a tax, "is a necessary and proper means of collecting the federal excise tax on spirits," because stills could be hidden within homes in order to evade taxation.

The more defensible view on this same matter was expressed in a U.S. Court of Appeals for the Fifth Circuit decision by Judge Edith Jones issued eleven days earlier. Far from furthering collection of the tax, the ban serves to "reduce revenue by preventing individuals from making distilled spirits" otherwise subject to taxation. It would be improper to allow Congress to "criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

The split between the Fifth and Sixth Circuits on the home-distilling ban's constitutionality is reason enough for the Supreme Court to take Ream's case, resolve this conflict, and provide national uniformity in the law. But there's also a need for further clarity on the Commerce Clause and Raich's continued viability. Given the massive growth of the federal government and its intrusion into every facet of modern life, there are few issues more important or pressing for the Court's consideration.

Andrew M. Grossman and Robert Alt represent John Ream in his litigation and also the plaintiffs who prevailed before the Fifth Circuit. Mr. Alt is President and CEO of The Buckeye Institute, where Mr. Grossman is a Senior Legal Fellow.