Supreme Court to Rule on 1868 Ban on Home Distilling

Key points

• The Supreme Court accepted the case 'Department of Justice v. McNutt' on Monday, October 19, 2026.
• The 1868 law prohibits distilling spirits in 'dwelling houses' or sheds to prevent tax evasion.
• Violations carry penalties of up to five years in prison and a $10,000 fine.
• The 5th Circuit Court ruled the ban unconstitutional, while the 6th Circuit upheld it.
• Oral arguments are expected early next year, with a decision anticipated by late June or early July 2027.

Background

This case stems from a conflict between the 5th and 6th Circuit Courts of Appeals, which issued conflicting decisions in April 2026. The 5th Circuit struck down the ban, while the 6th Circuit upheld it. The law was enacted during Reconstruction to address rampant tax evasion by commercial distillers, who often bribed revenue officers rather than pay the high excise tax.

How outlets are covering it

The Washington Post and AP News emphasize the constitutional question of whether Congress exceeded its taxing power. CNN highlights the historical context, noting that the ban may have been a political compromise with the temperance movement rather than a strict tax measure. CBS News focuses on the government's argument that home distilling facilitates tax evasion and inspection evasion. The Distilled Spirits Council, cited by CNN, warns of safety risks such as explosions and blindness from improper distillation, while challengers argue the ban sets a precedent for regulating other home activities like cooking or remote work.

Why it matters

The ruling could redefine the limits of federal power over private conduct. If the ban is struck down, it may open the door for other regulations to be challenged under similar 'necessary and proper' clause arguments. Conversely, upholding the ban would reinforce Congress's broad authority to regulate activities that could potentially evade taxes, even if the activity itself is not directly taxed.

What to watch

Oral arguments are expected early next year. A final decision is anticipated by late June or early July 2027. The Supreme Court may also decide whether to address a separate argument regarding Congress's power to regulate interstate commerce, which was raised in the lower courts.