The U.S. Supreme Court announced Monday it will review the constitutionality of a 160-year-old federal ban on distilling alcohol at home, taking up the case Department of Justice v. Scott McNutt for oral arguments next term.
The court’s decision follows conflicting rulings from two federal appeals circuits, with the Fifth Circuit striking down the ban and the Sixth Circuit upholding it. The high court’s review centers on whether Congress exceeded its constitutional authority when it enacted the 1868 law as part of Reconstruction-era tax reforms.
Key legal questions include whether the ban violates the Tenth Amendment by infringing on private property rights and whether Congress’s taxing power justifies restricting home-based distillation. The case could reshape federal authority over activities conducted in private residences.
Immediate Impact & Legal Framework
The federal law at issue, enacted in 1868, criminalizes the production of distilled spirits in private homes, with violators facing up to five years in prison, a $10,000 fine, and potential forfeiture of property. The ban was originally implemented to combat tax evasion by commercial distillers, who at the time paid a $2 per gallon tax—more than the market price of spirits. Lawmakers estimated that at least seven-eighths of spirits went untaxed due to fraud.
The Supreme Court’s decision to review the case stems from a split among lower courts. In April 2026, the Fifth Circuit ruled in favor of the Hobby Distillers Association, finding the ban unconstitutional because it criminalizes conduct unrelated to tax evasion. Conversely, the Sixth Circuit upheld the law in a case involving a brewpub owner seeking to distill whisky at home, asserting that Congress had authority to regulate distillation locations to prevent tax fraud.
Government’s Argument: Tax Enforcement Justifies Ban
Federal attorneys argue that the 1868 law is a valid exercise of Congress’s taxing power, designed to prevent producers from evading excise taxes by distilling spirits in unregulated settings. They contend that lifting the ban would undermine Supreme Court precedent and erode congressional authority over tax collection.
Government lawyers also warn that unrestricted home distilling could lead to increased tax evasion, citing historical patterns where commercial distillers bribed officials to avoid taxes. The Justice Department’s preferred case for review was the Fifth Circuit’s decision, which struck down the ban.
Challengers’ Argument: Ban Oversteps Federal Power
Plaintiffs challenging the law, including the Hobby Distillers Association, argue that the 1868 ban is an outdated relic of Reconstruction-era politics and exceeds Congress’s enumerated powers. They assert that the law criminalizes personal conduct unrelated to tax collection, such as brewing beer or fermenting wine, which remain legal.
Attorneys for the plaintiffs contend that Congress could theoretically ban any activity in private homes—including cooking or gardening—under the government’s interpretation of the law. A federal district court previously sided with challengers, ruling that the ban does not directly relate to tax enforcement and thus violates constitutional limits on federal power.
Historical Context & Broader Implications
The 1868 law was part of a broader tax reform effort to stabilize federal revenue after the Civil War. At the time, the tax rate on spirits was so high that commercial distillers frequently avoided payment, leading to widespread fraud. The legislation reduced the tax rate and required duties to be paid before spirits left warehouses, while also prohibiting home production to close loopholes.
Legal experts note that the Supreme Court’s ruling could have far-reaching consequences beyond alcohol production. If the court sides with challengers, it may limit Congress’s ability to regulate activities in private homes under the guise of tax enforcement. Conversely, upholding the ban could reinforce federal authority to restrict conduct in residential settings for tax-related purposes.
What’s Next?
Oral arguments in Department of Justice v. McNutt are expected next term, with a decision likely by June or July 2027. The case has drawn attention from small-batch distillers, home brewers, and tax policy advocates, who argue that the ban stifles personal freedoms and economic opportunities.