Supreme Court to decide whether 158-year-old ban on home distilling is constitutional

The Supreme Court agreed Monday to decide whether a federal ban on distilling liquor at home, a law that has stood since 1868, violates the limits the Constitution places on Congress's power to tax. The justices granted certiorari in Department of Justice v. McNutt, a case brought by a Texas hobbyist and a nationwide association of amateur distillers who successfully challenged the ban in the lower courts.

The order appeared on the court's regular Monday order list, granted without comment, as is customary when the justices agree to hear a case. Oral argument is expected next year, with a decision likely by late June or early July 2027.

The numbers

The prohibition at issue, codified at 26 U.S.C. § 5178(a)(1)(B) and enforced through a companion criminal provision, bars anyone from operating a still in a dwelling house or in a shed, yard or enclosure connected to one. A violation is a felony punishable by up to five years in prison and forfeiture of the property involved, according to the Alcohol and Tobacco Tax and Trade Bureau's own guidance, which states flatly that federal law "strictly prohibits individuals from producing distilled spirits at home" even as home brewing of beer and wine for personal use remains legal. The ban carries no exception for spirits made solely for personal or family consumption.

Congress wrote the restriction into law in the years after the Civil War, when the federal excise tax on distilled spirits stood at $2 a gallon, often more than the liquor itself was worth on the open market. An 1867 House report, cited in the government's own filings, concluded that "at least seven-eighths" of all spirits produced in the country were escaping taxation, with distillers finding it cheaper to bribe revenue agents than pay the levy.

How the case reached the court

The challenge was brought by Scott McNutt, who holds a federal permit to distill fuel alcohol in a shed behind his Texas home, along with the Hobby Distillers Association and several of its members. A federal district court in the Northern District of Texas ruled in their favor, and the U.S. Court of Appeals for the 5th Circuit affirmed that decision in April, holding that the location restriction is not a legitimate exercise of the taxing power because it reduces potential tax revenue rather than protecting it. The panel found the restrictions amount to what it called an "antirevenue provision," since the law prevents taxable spirits from being produced at all rather than ensuring any tax on them gets paid.

Writing for the panel in its published opinion, Judge Edith Hollan Jones warned that the government's theory had no logical stopping point:

Under the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity. Home-based businesses may be forbidden. Remote work may be deemed a crime.

The ruling created a split with the 6th Circuit, which reached the opposite conclusion later that same month in a separate case brought by an Ohio hobbyist, upholding the ban on the merits while splitting with the 5th Circuit on the underlying constitutional question.

Solicitor General D. John Sauer asked the Supreme Court to resolve the conflict, telling the justices in the government's petition that the 5th Circuit's decision was erroneous and that Congress restricted at-home production because a distiller "can more easily conceal a distilling operation" when it is inside a residence. Lawyers for the hobbyists agreed the court should take up the question, arguing in their own filings that the government's theory of taxing power "has no limit."

Who is affected

The outcome will determine whether hobbyists nationwide can legally build a still for personal use at home. The Hobby Distillers Association, the lead advocacy group in the litigation, says it has more than 1,300 members. The practice is currently permitted in Texas, Louisiana and Mississippi under the 5th Circuit's ruling but remains a federal crime in Kentucky, Michigan, Ohio and Tennessee, where the 6th Circuit's ruling controls, and in every other state where federal law on the question has not been enjoined. Separate state-level bans on home distilling, where they exist, would remain unaffected regardless of how the Supreme Court rules.

A companion petition, Ream v. Department of the Treasury, brought by the Ohio hobbyist who lost at the 6th Circuit, remains pending before the court without action. The government had asked the justices to hold that case until McNutt is decided rather than grant it alongside it, and the docket shows no ruling on it as of Monday.

Reaction

Legal observers who track the court's docket noted before Monday's order that the case was unusual in that both sides, the government and the challengers, agreed the Supreme Court should take it up, even though they disagree on how it should come out. A preview published by SCOTUSblog described the alignment as a rarity in Supreme Court practice, where petitioners and respondents typically spar over whether review is warranted at all.

Outside groups have weighed in on the broader question of congressional power at stake. Amicus briefs supporting review in the companion Ream case were filed by a coalition of 15 states led by Ohio, along with libertarian and limited-government organizations including the Cato Institute and the Pacific Legal Foundation, which argue the case could clarify the boundaries of Congress's authority under the Necessary and Proper Clause.

What happens next

Briefing will proceed over the coming months, with oral argument likely scheduled for early 2027. A ruling is expected before the court's term ends, probably in late June, which would leave the 158-year-old ban in a state of legal limbo, enforceable in some states and not in others, until then. CBS News, which first reported the grant Monday morning, noted that the case gives the court its clearest opportunity yet to define how far Congress may reach using its taxing power to regulate conduct that never generates a dollar of tax revenue at all.