The Supreme Court will decide whether a 158-year-old federal law can keep Americans from legally distilling their own whiskey in their own homes.
Quick Take
- The Supreme Court agreed to review Department of Justice v. McNutt, a case testing a federal ban on home distilling that dates to 1868.
- The Fifth Circuit struck down the law as unconstitutional, while the Sixth Circuit upheld the same provisions, creating a direct circuit split.
- Plaintiff Scott McNutt was denied a license to distill fuel alcohol at home, giving the case a real-world injury behind the legal theory.
- The government says the ban stops tax evasion because home stills are easier to hide from federal inspectors than commercial distilleries.
A Reconstruction-Era Law Faces Its Biggest Test Yet
The law at the center of this fight bans producing distilled spirits inside a dwelling house or any shed, yard, or enclosure connected to one. Congress passed it in 1868, during Reconstruction, as part of a broader crackdown on excise-tax fraud in the spirits industry. More than 150 years later, that same provision still carries criminal penalties for anyone caught distilling at home, whether they’re making moonshine or fuel alcohol.
How Scott McNutt Became the Face of This Fight
Scott McNutt owned a home still he used to make fuel alcohol, not beverage spirits for sale. When he and fellow members of the Hobby Distillers Association asked the Alcohol and Tobacco Tax and Trade Bureau for permission to distill legally at home, the agency told them no. That denial gave them standing to sue, arguing Congress never had the constitutional power to ban the activity in the first place.
The Fifth Circuit agreed with McNutt’s side in April, ruling that the location-based ban exceeds Congress’s enumerated powers under the Constitution. The judges held that the taxing power, which lets Congress collect money on spirits, does not automatically give it authority to criminalize where someone makes them. That ruling created a binding appellate judgment directly at odds with another federal court.
Why the Government Says the Ban Protects Tax Collection
The Justice Department argues the location rule is “necessary and proper” for enforcing Congress’s taxing power, even though the Constitution doesn’t explicitly authorize a flat prohibition on home production. Government lawyers say a still hidden inside a house is far easier to conceal from federal inspectors than one sitting on licensed, bonded commercial property, making tax evasion harder to catch and stop.
That argument isn’t new. The Sixth Circuit upheld the identical statute earlier this year, reasoning that home stills are “easier to hide and harder to search” than bonded distilleries. The judges there traced the rule back to the Act of July 20, 1868, which they described as a “monumental effort” to end what lawmakers at the time called “stupendous frauds” in the whiskey trade.
A Split Between Circuits Forces the Supreme Court’s Hand
With the Fifth Circuit striking the law down and the Sixth Circuit upholding it, the same federal statute now means different things depending on which state you live in. That kind of split rarely survives long without Supreme Court intervention, since it leaves citizens and prosecutors guessing which rule actually applies. The justices took the case specifically to resolve that conflict.
The question the Court will answer is narrow but consequential: is banning home distilling actually necessary to carry out Congress’s power to tax spirits, or is it a prohibition on private conduct dressed up as tax enforcement? That distinction matters well beyond liquor. It touches how far Washington can reach into private homes whenever it claims a revenue justification, a principle plenty of Americans have reason to watch closely.
Craft beverage production has grown into a real industry, with tens of thousands of businesses generating roughly thirty-two billion dollars a year, showing how much public appetite exists for making and enjoying spirits legally. Whatever the Court decides, this case will settle more than a hobbyist’s dispute over a backyard still. It will mark how far Congress’s taxing power can stretch into the privacy of an American home.
Sources:
washingtontimes.com, supremecourt.report, scotusblog.com, thehill.com, congress.gov
