Supreme Court asked to rule on federal ban on home production of distilled spirits
The debate over taxing home-produced distilled spirits is almost as old as America itself, and the latest controversy has arrived at the Supreme Court for consideration.
Distilled spirits are alcoholic beverages produced by heating and condensing a fermented liquid to increase its alcohol percentage, as compared with beer and wine, which is produced using fermentation with a lower alcohol content.
Two petitions filed in recent months at the Supreme Court seek to settle the question of the ability of Congress to ban the home production of distilled spirits, while allowing people to make their own beer, wine, cider, and lower alcohol-content drinks and beverages for their own consumption.
The home-distilling ban is based on federal tax laws from 1866 and 1868 that amended an existing excise tax on distilled spirits to prohibit their production “in any dwelling-house” or areas located on the same home property like sheds. Since then, Congress has enacted other laws to regulate the location of all distillate plants, including large operations.
In Ream v. Department of the Treasury, petitioner John Ream of Ohio is a former home brewer and current brewpub owner who took legal action in 2024 against the federal government ban on home distilling. Ream wishes to make whiskey at home to sample, and he will pay any federal taxes on it. A federal district court initially ruled against Ream. On April 21, 2026, the U.S. Court of Appeals for the Sixth Circuit also ruled in favor of the government.
Just 11 days earlier, the U.S. Court of Appeals for the Fifth Circuit came to a different conclusion. In Department of Justice v. McNutt, four members of the Hobby Distillers Association, including Scott McNutt, sued in the United States District Court for the Northern District of Texas over the same question. The court decided only McNutt had standing to pursue legal action. It then ruled in favor of McNutt, saying the congressional tax statutes did not apply in his case. The Fifth Circuit reinstated the other three plaintiffs and held that Congress’s power under the Constitution’s Necessary and Proper Clause didn’t extend to the home distillers such as McNutt.
Petitions from both cases will now be considered by the Supreme Court on October 9, 2026, in private conference.
The Founding, Reconstruction, and Taxing Spirits
In its petition to the Supreme Court, the Justice Department notes that the federal power to tax distillates goes back to the First Congress. Treasury Secretary Alexander Hamilton urged the “expediency” of taxing distilled spirits by the federal government. The department brief cites a quote from historian Gallus Thomann in 1885 that during the Founding era “nearly every farmer distilled his own whiskey and deemed it his inalienable right to evade the tax and resist the collector.”
Congress passed several statutes taxing liquor, leading to the Whiskey Rebellion of 1794. Among the biggest opponents to Hamilton’s taxes was Thomas Jefferson, who told James Madison in 1794 that “the excise law is an infernal one. The first error was to admit it by the Constitution; the 2d., to act on that admission; the 3d & last will be, to make it the instrument of dismembering the Union, & setting us all afloat to chuse which part of it we will adhere to.”
Over time, the federal government taxed distilled spirits in different ways including a brief repeal. During Reconstruction, Congress saw the need to crack down on widespread evasion of liquor-production taxes. The separate tax laws from 1866 and 1868 form the basis for the current tax laws that set taxes on distilled spirits the moment they are produced in all locations.
Under 26 U.S.C. 5178(a)(1)(B), the distilling of spirits is prohibited in locations including “any dwelling house, in any shed, yard, or inclosure connected with any dwelling house, or on board any vessel or boat, or on premises where beer or wine is made or produced, or liquors of any description are retailed, or on premises where any other business is carried on (except when authorized under subsection (b)).” The subsection allows the government to approve production that “will not jeopardize the revenue.”
Comparing the Two Cases
At the heart of both petitions to the Supreme Court is the Necessary and Proper Clause in Article 1, Section 8, of the Constitution. It is the final clause in Section 8, which lists (or enumerates) powers directly granted to Congress. The clause empowers Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
The Justice Department is asking the Supreme Court to affirm that the tax laws about home distilling are “necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”
The department cites the landmark case, McCulloch v. Maryland (1819), as supporting its argument. Under McCulloch, Chief Justice John Marshall ruled that “a law is necessary and proper if it is ‘convenient’ or ‘useful’ for carrying an enumerated power into effect, and ‘plainly adapted’ to that legitimate end,” the department argues.
“Under McCulloch and its progeny, courts may not second-guess Congress’s reasonable judgment that the increased ability to collect taxes from those complying with the restrictions would offset any reduction in the tax base from others who would forgo distilling altogether. And because the location restrictions were enacted only after lengthy experience with tax evasion, upholding those restrictions would not open the door to hypothetical laws restricting other conduct lacking that history,” it concludes.
The department also finds fault with the Fifth Circuit ruling in favor of the home distillers, which it says, “departs from this Court’s precedents and imperils Congress’s legislative power.”
In their petition in Ream, the home distillers make differing arguments. Their attorneys state that the home distilling ban is “a relic of Reconstruction-era politics.” They also believe the punishment for violations under the tax laws are excessive. “Federal law also makes it a crime—punishable by five years’ imprisonment, a $10,000 fine, and forfeiture of the offender’s home—to produce distilled spirits in that home.”
Their main argument finds fault with the Justice Department’s interpretation of the Necessary and Proper Clause as permitting the home distilling ban. “Asked which enumerated power authorizes that prohibition, the government answered: the power to tax the very conduct it prohibits. Banning the taxed activity, on this theory, is a ‘necessary and proper’ means of taxing it.”
They note the clear split between the two federal appeals courts. “The Sixth Circuit accepted that theory and upheld the prohibition. And it did so eleven days after the Fifth Circuit, in a materially identical challenge to the same prohibition, rejected the same theory and held the prohibition unconstitutional.”
Ream’s attorneys also ask the Supreme Court to consider the appeal in the context of the Constitution’s Commerce Clause in conjunction with its precedent in Gonzales v. Raich (2005). In Raich, a divided Court said Congress could prohibit marijuana use for any purpose in states under its Commerce Clause powers, including those states that had legalized its use for medical purposes.
The cases seem likely to be seriously considered at conference for a grant of certiorari by the Supreme Court for several reasons. The two federal appeals courts present clearly conflicting decisions. Both sides want the cases heard by the Court. However, the Justice Department does not view the cases as supporting an attempt to reconsider the Raich precedent.
It will take four justices to accept the case for arguments at the Court. One key question for Court watchers is whether the Court adds a second question about whether to reconsider Raich if it accepts the case.
Scott Bomboy is the editor in chief of the National Constitution Center.