Supreme Court takes case on home production of distilled spirits

On Monday, the Supreme Court granted a petition to settle a dispute over the federal government’s power to ban the production of home-produced distilled spirits.

The Court agreed to hear arguments in Department of Justice v. McNutt, one of two related cases on the federal distilled spirits ban presented to the justices. It took no action on a related appeal, Ream v. Department of the Treasury.

The question before the Court in McNutt is “whether the prohibition on the production of distilled spirits in particular locations, including ‘in any dwelling house’ or ‘in any shed, yard, or inclosure connected with any dwelling house’ … is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”

The petition to the Court in Ream also asked the justices to settle the taxing question and to reconsider its precedent in Gonzales v. Raich (2005). In Raich, a divided Court said Congress had broad power to prohibit marijuana use in the states, including those states that had legalized its use for medical purposes.

The justices did not add the challenge to Raich as a question to be considered by the Court in the McNutt case when it accepted the challenge for argument.

Two petitions sought to settle a dispute over 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.

The Two Petitions to the Court

The McNutt case comes from the U.S. Court of Appeals for the Fifth Circuit. Four members of the Hobby Distillers Association, including Scott McNutt, sued in the U.S. District Court for the Northern District of Texas over the ban. The Fifth Circuit held that Congress’s power under the Constitution’s Necessary and Proper Clause didn’t extend to the home distillers such as McNutt.

The Constitution’s Necessary and Proper Clause in Article 1, Section 8, empowers Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [in Article I, Section 8], 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 in McNutt asked the Supreme Court to limit the question before it to just the Necessary and Proper Clause. The department cited the landmark case, McCulloch v. Maryland (1819), and other precedents as supporting its argument. The Supreme Court accepted the question presented from the department, without comment or additional questions.

In the Ream appeal, petitioner John Ream of Ohio wished to make whiskey at home to sample, and he agreed to 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.

In his appeal to the Court, Ream’s attorneys disagreed with the Justice Department’s interpretation of the Necessary and Proper Clause as permitting the home distilling ban. But they also wanted the justices to reconsider Gonzales v. Raich.

In its most-recent petition to the Court, Ream argued the Justice Department’s true goal was “to keep this Court away from Gonzales v. Raich, the precedent the government invoked at every stage below and now declines even to mention in its own defense.”

“The importance of reconsidering Raich can hardly be overstated. The decision deforms federalism, invading powers reserved to the states and the people,” the petitioned claimed. “Ultimately, it countenances no limiting principle on the reach of federal power.”

In a reply brief in the Ream case, the Justice Department dismissed the impact of Raich in this instance. “That question was not addressed by either lower court in this case, and it does not warrant this Court’s consideration.”

And in its reply brief in McNutt, the Justice Department also argued that “resolving the taxing-power question presented in this case will thus resolve the merits of all arguments the government is advancing in defense of the statute at issue in both cases.”

“Of course, that in no way forestalls this Court’s ability to reconsider Gonzales v. Raich if it wishes in an appropriate case—namely, in a Controlled Substances Act case where the government is actually defending the statute’s constitutionality based on the commerce power.”

At private conference on October 16, at least four justices voted to limit the appeal to the Necessary and Proper Clause. Arguments will be held in 2027 with a decision likely by late June.

Scott Bomboy is the editor in chief of the National Constitution Center.