Supreme Court to Hear Challenge to 1868 Ban on Home Distilling

Key points

• The Supreme Court granted review of Department of Justice v. McNutt, challenging an 1868 law that bans home distilling of spirits.
• The 5th Circuit Court of Appeals ruled the ban unconstitutional, stating it does not 'plainly adapt' to the government's taxing power and actually reduces revenue.
• The 6th Circuit Court of Appeals upheld the ban in a separate case involving John Ream, arguing alcohol regulations are unique due to historical evasion issues.
• The government argues the ban is necessary to prevent tax evasion, as home distilleries are harder to inspect and conceal operations.
• Challengers argue the ban is an antiquated relic that could allow Congress to criminalize other private activities like cooking or remote work if they are taxable.
• Penalties for violating the ban include fines up to $10,000, up to five years in prison, and potential forfeiture of the home.

Background

This case follows a series of lower court rulings that split on the issue. The 5th Circuit struck down the ban in April 2026, while the 6th Circuit upheld it 11 days later. The 1868 law was enacted during Reconstruction to address rampant tax evasion by commercial distillers, who often bribed revenue officers. The law was part of a broader tax reform that lowered the tax rate but restricted where spirits could be produced. The Supreme Court’s decision will determine whether Congress’s taxing power extends to prohibiting private, non-commercial activities that could potentially evade taxes.

How outlets are covering it

CBS News and AP News emphasize the constitutional question of whether Congress exceeded its taxing power, noting the 5th Circuit’s view that the ban reduces revenue. CNN highlights the broader implications, arguing that if the ban is upheld, the government could potentially ban other home activities like baking or remote work if they are taxable. SCOTUSblog focuses on the legal arguments, noting the government’s claim that the ban is 'plainly adapted' to prevent tax evasion, while challengers argue it is an 'antiquated relic' of Reconstruction-era politics. The 6th Circuit’s decision to uphold the ban contrasts with the 5th Circuit’s ruling, creating a split that the Supreme Court must resolve.

Why it matters

The Supreme Court’s decision will have significant implications for the scope of federal power and the limits of Congress’s taxing authority. If the ban is struck down, it could allow individuals to distill spirits at home for personal use, potentially increasing tax revenue. If upheld, it could set a precedent for the government to regulate other private activities based on potential tax evasion. The case also raises questions about the balance between federal power and individual rights, as challengers argue the ban infringes on the rights of private citizens to engage in non-commercial activities.

What to watch

The Supreme Court is expected to hear oral arguments in the case early next year, with a final decision anticipated by late June or early July 2027. The outcome will determine whether the 1868 ban on home distilling remains in effect or is struck down as unconstitutional. The decision could also influence future cases involving federal regulations of private activities and the scope of Congress’s taxing power.