Supreme Court to hear arguments on 160-year-ban on home distilleries

The Supreme Court on Monday agreed to hear a case on whether Congress had the constitutional authority to ban the distillation of spirits in private homes for personal consumption over 150 years ago. Arguments in the case of Department of Justice v Scott McNutt have not yet been scheduled. 

The case was appealed to the Supreme Court by the Trump administration, which asked the justices to weigh “Whether the prohibition on the production of distilled spirits in particular locations, including ‘in any dwelling house’ or ‘in any shed, yard, or enclosure connected with any dwelling house,’ is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”

The filing stated that “Since the Founding era, Congress has imposed an excise tax on the production of distilled spirits.” After documenting “rampant evasion” of efforts to collect such tax, Congress enacted measures targeting the production of distilled spirits with the purpose of securing “the payment of the tax imposed by law upon distilled spirits.” 

“Among those provisions was a ban on distilling spirits in locations where tax evasion had proved difficult to uncover. That ban is currently codified at 26 U.S.C. 5178(a)(1)(B), which prohibits distilling spirits in locations including ‘any dwelling house,’ or ‘in any shed, yard, or inclosure connected with any dwelling house.’”

The Trump administration argued that the Fifth Circuit had erred in finding that the law’s “location restrictions are unconstitutional, reasoning that they reduce otherwise-taxable conduct and therefore are not necessary and proper in carrying out Congress’s taxing power."

The suit was first filed in 2023 by the Hobby Distillers Association and members of the group who wanted to be able to operate home distilleries. They urged the Supreme Court to keep the Fifth Circuit’s ruling in place, but argued that the court should still grant review, saying that the case “presents fundamental questions of the extent of federal power and the powers reserved to the states and the people.”

Their filing cited a recent ruling from the Sixth Circuit court on the same matter in a different case. There, the Sixth Circuit upheld the ban on home distilleries, saying that it was a necessary and proper exercise of Congress’ power to collect the distilled spirit tax. 

Robert Alt, a lead attorney on the case and the president and chief executive officer of The Buckeye Institute, which is representing those challenging the ban on home distilling, said, “Our country’s founders would be rolling over in their graves to learn that a pastime in which even George Washington partook, which is as American as apple pie and certainly a lot older, has quite absurdly been turned into a federal crime. The Buckeye Institute is thrilled that the U.S. Supreme Court took the McNutt case and our clients will have their day in court.”

Andrew M. Grossman, senior legal fellow at The Buckeye Institute, partner in BakerHostetler’s Washington, D.C., office, and counsel of record on the case, said, “This case is important not only for would-be home distillers, but for everyone concerned about the legitimate constitutional limits on the federal government’s authority. We hope all Americans join us in raising a glass of home-distilled spirits in celebration after the U.S. Supreme Court rules in this David v. Goliath battle for freedom.”