Perhaps you have a friend or neighbor who homebrews beer in his basement. According to a 2017 study by the American Homebrewers Association, there are 1.1 million homebrewers in the U.S. Forty percent of them began brewing within the last several years. Fifty-two percent of them fall between the ages of 30-49. Seventy percent of them have a bachelor’s degree or higher. Eighty-five percent of them are married. 

Perhaps you have another friend or neighbor who distills whiskey, gin, rum, vodka, or other spirits in their home? According to a Prohibition-era provision of the United States Code, one hundred percent of them are federal felons subject to $10,000 fines and up to five years imprisonment for each such offense. Choose your friends and hobbies wisely. Title 26 criminalizes any distillation of alcoholic beverages in a dwelling house or upon any property connected to a dwelling.

In a recently filed lawsuit, the Competitive Enterprise Institute challenges the at-home distilling ban as an overreach of Congress’s enumerated powers. CEI attorneys represent the Hobby Distillers Association and four individual member plaintiffs seeking declaratory and injunctive relief that will allow them to run hobby stills in or near their homes for the exclusive purpose of personal consumption.

A fermenting mash of historical facts and legal developments make the at-home distilling ban an ideal target for Commerce Clause and taxing power challenges. First, the vestigial ban on at-home distilling stands in sharp contrast with the permissive regulatory schemes that govern homebrewing, winemaking, off-site beverage distilling, and even at-home distillation of alcohol for fuel usage. Second, at-home distilling for personal consumption epitomizes local activity, specifically non-commercial activity without any relation to a general regulatory scheme. Third, the at-home distilling ban lacks the essential feature of a tax, revenue generation, and is not calculated to effect any such revenue collection. As CEI’s lead attorney on the case, Devin Watkins, aptly summarizes: “No enumerated constitutional power authorizes the home distillery ban.”

The absolute ban on at-home distilling of beverages is an anomaly. Homebrewing and winemaking are widely popular hobbies. Similarly, several of the individual plaintiffs are licensed to distill alcohol for fuel use in their homes, even though the product is precisely the same alcohol they are prohibited from using in beverages. These permitted at-home activities are regulated and taxed effectively. CEI argues that the government must present some rationale for the disparate treatment of home beverage distillation. The ban’s geographic scope, proscribing distilling on any property connected to a dwelling, defies reasoned explanation. For example, the statute permits distillation on property without a dwelling, even if only a single foot of third-party property separates that still from its owner’s residence. At the same time, on a contiguous piece of rural land, all distillation is prohibited even if a still could be located miles away from any residence. CEI emphasizes the difficulty of reconciling these strange results with any legitimate regulatory or taxing purpose.

The purely local nature of home distillation for personal consumption strains even the expansive scope of the Commerce Clause. The at-home distilling ban does not regulate interstate transactions, goods moving across interstate lines, or the channels or instrumentalities of interstate commerce. As with homegrown wheat production (Wickard) or home growth of marijuana (Raich), the only potential justification for the government’s exercise of the Commerce Clause lies in the claim that “distilling at home is an activity that is not part of interstate commerce but has a substantial effect on interstate commerce, causing its regulation to be necessary and proper to an interstate regulation.” 

But here, CEI identifies a critical distinction from Wickard and Raich. The Court’s decisions in those cases rested upon the existence of an interstate regulatory scheme that was substantially related to commerce and effectuated by regulation of activities in the home. In Wickard, the Court ruled that the regulation of homegrown wheat was necessary to the Agricultural Adjustment Act of 1938’s comprehensive object of preventing surpluses, shortages, and abnormal wheat prices. Likewise, in Raich, the Court concluded that regulation of homegrown marijuana was necessary to avoid creating “a gaping hole” in the comprehensive scheme of the Controlled Substances Act. 

The at-home distilling ban does not support any general regulatory scheme with a substantial relation to commerce. Congress has not passed a cap on the volume of distilled spirits entering the market. Nor has Congress prohibited the interstate transport of distilled spirits. Even if the plaintiffs were permitted to distill beverages in their homes, the government would be hard-pressed to identify any general scheme regulating interstate commerce which the activity would disrupt. The side-by-side comparisons to homebrewing, home winemaking, and home fuel distillation cut against such claims. In the absence of any related regulatory scheme, CEI argues that the at-home distilling ban cannot be justified under current Commerce Clause standards. 

Even if the trial court rejects this distinction, CEI has preserved the argument that Wickard was wrongly decided for appeal. Home distilling for personal consumption presents just the type of purely local activity that might support a move in the Court’s Commerce Clause jurisprudence towards the “original understanding” Justice Thomas referenced in his Lopez and Morrison concurrences. Home distilling would fall outside of the definition of commerce Justice Thomas has articulated: “selling, buying, and bartering, as well as transporting for these purposes.” What’s more, at-home distilling’s non-commercial character supports an argument in line with Thomas’s argument that Congress only has authority over interstate commerce itself, not over all activities which substantially affect interstate commerce. As Thomas summarized in dissent in Raich, “[i]f Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

Finally, CEI argues that the at-home distilling ban cannot be justified as an exercise of the federal taxing power. The at-home distilling ban produces no revenue and therefore lacks “the essential feature of any tax.” In contrast to the broad regulation supported by the Commerce Clause power, “Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.” An outright ban forecloses any opportunity to collect excise taxes, taxes the plaintiffs in this case have stipulated they would be more than happy to pay.

The at-home distilling ban is also not appropriate, plainly adapted, or really calculated to effect federal taxation under the necessary and proper clause. CEI’s lawsuit challenges only the two provisions banning at-home distilling outright. The plaintiffs do not challenge any of the surrounding provisions—requiring the registration of stills, regulating still design, security, and location, requiring a bond to ensure compliance, permitting government inspection, and requiring thorough recordkeeping and reporting. CEI argues that these valid, adjacent provisions adequately ensure the government will receive all tax revenue it is due. In contrast, the absolute ban on at-home distilling adds nothing to this scheme to advance the collection of taxes. CEI notes that the ban is particularly hard to defend as essential because “other home-based businesses that manufacture alcoholic beverages pay taxes to the federal government without any such undercutting, interference, or other obstruction to revenue collection.” 

The Constitution’s enumerated powers are potent drafts, but judicial review has long permitted inebriated exercises of these powers to wander unchecked. Many originalists pine for the day when the Supreme Court restores a more constrained view of the commerce and taxing powers. In this case, CEI has identified an out-of-step ban on a purely local activity that starkly demonstrates the federal overreach current doctrines permit. If refining a spirit in your home to enjoy with family and friends can by banned outright as an exercise of the federal government’s interstate commerce or taxing power . . . what can’t be? Perhaps we’ll soon join hobby distillers around the nation in toasting another step toward restoring a federal government of limited and enumerated powers.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].