Supreme Court to review Reconstruction-era ban on home distilling

Overview

Updated Yesterday

The Supreme Court agreed Monday to decide whether a 158-year-old federal ban on distilling spirits at home is constitutional. The case, Department of Justice v. McNutt, tests how far Congress can go under its power to tax.

The ban dates to 1868, when Congress passed it to curb tax evasion by commercial distillers. Two federal appeals courts have split on the question. Arguments are expected early next year.

Why it matters

If the Court strikes down the ban, Americans could legally distill spirits at home for personal use for the first time in 158 years.

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Key Indicators

158

Years the ban has been in place

Congress enacted the home-distilling prohibition in 1868.

5 years

Maximum prison sentence for home distilling

Violators face up to five years in prison and a $10,000 fine.

$10,000

Maximum fine for home distilling

The penalty applies to producing distilled spirits at home without a license.

Federal appeals courts split on the ban

The 5th Circuit struck it down; the 6th Circuit upheld it.

Voices

Curated perspectives — historical figures and your fellow readers.

Ever wondered what historical figures would say about today's headlines?

People Involved

Scott McNutt

Lead plaintiff in Department of Justice v. McNutt

Won in the 5th Circuit

John Ream

Ohio plaintiff challenging the ban

Lost in the 6th Circuit

D. John Sauer

U.S. Solicitor General defending the ban

Filed the petition for certiorari

Edith Hollan Jones

5th Circuit judge who wrote the opinion striking down the ban

Wrote the April 2026 opinion

Organizations Involved

Hobby Distillers Association

Nonprofit organization

Challenging the ban

A nonprofit representing home distilling enthusiasts, with about 1,300 members.

Department of Justice

Federal law enforcement agency

Defending the ban

The federal agency defending the home-distilling ban before the Supreme Court.

Supreme Court of the United States

Federal high court

Reviewing the case

The highest court in the United States, which agreed to review the case on October 19, 2026.

Timeline

1868 October 2026

6 events Latest: Yesterday

Tap a bar to jump to that date

October 2026
Supreme Court grants review
Latest Legal

The justices agreed to hear Department of Justice v. McNutt, testing whether the ban is a valid exercise of Congress's taxing power.
Yesterday
August 2026
Petition for certiorari filed
Legal

The Department of Justice filed a petition asking the Supreme Court to review the 5th Circuit's decision.
August 14th, 2026
April 2026
5th Circuit declares ban unconstitutional
Legal

The appeals court ruled in favor of the Hobby Distillers Association, calling the ban an unnecessary and improper means for Congress to exercise its power to tax.
April 10th, 2026
6th Circuit upholds ban
Legal

The appeals court, ruling on Ream's case, upheld the home-distilling ban.
April 2026
2024
John Ream sues Treasury Department
Legal

Ream, a Newark, Ohio resident, challenged the ban on home distilling.
2024
1868
Congress enacts home-distilling ban
Legislation

Congress passed the ban as part of a tax reform measure to curb fraud by commercial distillers.
1868

Scenarios

Supreme Court upholds home-distilling ban

Possible Resolves by Q2 2027

Discussed by: Solicitor General D. John Sauer and government attorneys

The Court rules the ban is a valid exercise of Congress's taxing power under the Necessary and Proper Clause. This would resolve the circuit split in favor of the government and keep the 1868 law in place. The ruling would reaffirm that Congress can restrict where spirits are distilled to prevent tax evasion.

Supreme Court strikes down home-distilling ban

Possible Resolves by Q2 2027

Discussed by: Hobby Distillers Association and 5th Circuit Judge Edith Hollan Jones

The Court rules the ban exceeds Congress's enumerated powers. Home distilling for personal use becomes legal, though commercial distilling remains regulated. The ruling would be the most significant Necessary and Proper Clause decision since NFIB v. Sebelius in 2012.

Court issues narrow ruling, leaves question open

Unlikely Resolves by Q2 2027

Discussed by: Legal analysts

The Court rules on narrow grounds, perhaps remanding to the lower courts or limiting the scope of the decision. The broader question of home distilling's legality remains unsettled, and Congress could respond with new legislation.

Historical Context

3 moments from history that rhyme with this story — and how they unfolded.

June 2012

NFIB v. Sebelius (2012)

The Supreme Court considered whether the Affordable Care Act's individual mandate was constitutional. The Court ruled 5-4 that the mandate could not be justified under the Necessary and Proper Clause, though it upheld the law under Congress's taxing power.

Then

The individual mandate survived as a tax, but the Court limited the scope of the Necessary and Proper Clause.

Now

The ruling established that a law must be 'ancillary' to an enumerated power, not a 'great, substantive and independent' power.

Why this matters now

This is the most recent major Necessary and Proper Clause decision. The home-distilling case will likely further clarify what counts as a 'great and independent' power.

June 2005

Gonzales v. Raich (2005)

The Supreme Court ruled that federal law banning marijuana applied to locally grown plants used for personal medical purposes. The Court held that Congress could regulate intrastate activity under the Commerce Clause.

Then

The federal marijuana ban was upheld even for personal, noncommercial use.

Now

The case established broad federal power over local activity that could affect interstate markets.

Why this matters now

The home-distilling challenge asks whether Congress's power extends to local, noncommercial conduct. The Court's ruling could clarify or limit the reach of federal power over such activity.

1794

The Whiskey Rebellion (1794)

President George Washington called out 13,000 troops to suppress a rebellion in western Pennsylvania against the federal excise tax on distilled spirits. The tax was the first major test of federal taxing power under the new Constitution.

Then

The rebellion was suppressed without major bloodshed, demonstrating federal authority to enforce tax laws.

Now

The episode established that the federal government could tax distilled spirits, a revenue source that continues today.

Why this matters now

The home-distilling ban is rooted in the same federal interest in taxing distilled spirits that sparked the Whiskey Rebellion. The case tests how far that taxing power extends.