U.S. Supreme Court to Review Constitutionality of Home Liquor Distilling Ban

The Supreme Court said on Monday that the court will consider the constitutionality of a nearly 160-year-old federal ban on distilling liquor at home. Arguments in Department of Justice v. McNutt will likely take place next year, with a decision coming by late June or early July.

The law, enacted in 1868, prohibits producing distilled spirits at home for personal use. Any person who uses or possesses stills or other equipment to produce distilled spirits in a dwelling house, shed, yard or enclosure faces criminal penalties. Violators face fines and up to five years in prison. The violator's home and property within the home are also subject to forfeiture. The law provides no exceptions for distilled spirits made for personal or family use.

Congress approved the location restrictions after determining that commercial distillers were evading taxes on a large scale. A House report from 1867 said the spirits tax was $2 per gallon, more than the spirits' market price. The House report said commercial distillers found bribing revenue officers cheaper than paying the tax. Lawmakers determined that at least seven-eighths of spirits went untaxed at the time. The legislation that ultimately prohibited home distilling cut the tax rate. The legislation also required payment of duties before spirits were removed from warehouses.

The Hobby Distillers Association and a member who wants to distill spirits at home brought the challenge. The plaintiffs argued that the prohibition exceeded Congress's enumerated powers, including the taxing power. A federal district court sided with the plaintiffs and found the ban unconstitutional. The district court said the location restrictions criminalize conduct by people not subject to the tax and do not affect the product being taxed.

The U.S. Court of Appeals for the 5th Circuit upheld most of the district court's decision. The 5th Circuit said the restrictions are not "plainly adapted" to support the government's taxing power because the restrictions bar production of spirits that could generate tax revenue. The 5th Circuit said upholding the ban would allow Congress to criminalize nearly any at-home conduct merely because that conduct could conceal taxable activity.

Solicitor General D. John Sauer urged the Supreme Court to hear the case and argued that the lower court decision was erroneous. Sauer wrote in the appeal that Congress restricted home distilling because a dwelling house or connected structure makes concealing a distilling operation or thwarting inspections easier. Sauer argued that those conditions enable distillers to evade the required tax. Lawyers for the would-be distillers also asked the Supreme Court to decide the ban's constitutionality. The lawyers argued that the ban exceeds Congress's powers under the Constitution's Taxation and Necessary and Proper Clauses. The lawyers warned in court papers that the government's asserted power to criminalize local conduct that might conceal taxable activity has no limit.