SCOTUS Asked to Resolve Split Between Circuits on Home Distilling Ban

The U.S. Supreme Court is being asked to strike down the federal statute prohibiting home distilling, which it defines as a criminal offense, punishable by a $10 fine, five years in prison and forfeiture of the offender's home.

We think it's long past time for that relic of Reconstruction-era politics to be wiped off the books. But Congress won't do it (Congress hasn't done a whole heck of a lot in the last two or three decades, has it?), and we hate for courts to forget they are judges, not legislators.

Fortunately, in this case the Court is being asked to do explicitly what it is expected to do: resolve a conflict between circuits. The justification for the statute is so the government can collect spirits excise taxes. In other words, the statute seeks to tax the very conduct it prohibits. That makes it a Constitutional, "necessary and proper" statute.

The Sixth Circuit bought that line and upheld the prohibition. It did so just 11 days after the Fifth Circuit, faced with a similar challenge to the same prohibition, held the statute unconstitutional. That sets up a conflict between the circuits, where what's legal in Tennessee is illegal just across the state line in Mississippi.

This is precisely the sort of conflict only the Supreme Court can resolve. You can expect the government to file a motion in opposition.

Why home brewing beer and home winemaking also illegal? This statute goes back to 1868. Congress enacted it as part of 1868 legislation to combat industrial-scale fraud by commercial distillers. They had discovered bribing revenue officers was cheaper than paying a tax that exceeded the market price of their product.

The legislation slashed the tax rate over the opposition of the temperance movement. The ban was introduced, without explanation, by a representative from Massachusetts, at the time a hotbed of anti-alcohol activity. It was adopted without debate and "there is no evidence even suggesting the prohibition reflects a considered congressional judgment about protecting the revenue or that it has ever served that purpose."

"The government’s revenue-protection theory has no stopping point," the petition to the Supreme Court says, "as the Fifth Circuit recognized. If Congress can ban what happens inside the home because home activity might conceal taxable conduct, it can ban nearly anything—home cooking, home gardening, remote work—for each involves conduct that, pursued out of sight, “has the possibility of concealing taxable activity.”