Can Americans Legally Distill Whiskey At Home? U.s. Supreme Court Drinks In Case

The U.S. Supreme Court agreed on Monday to hear a case over whether home whiskey distilleries are constitutional.

The high court agreed to hear Department of Justice v. McNutt, a case challenging the government’s authority to levy taxes against Texas resident Scott McNutt for seeking to distill whiskey in his home. McNutt sought to pursue the practice after obtaining a license from the Bureau of Alcohol, Tobacco and Firearms.

However, in 1866 the federal government placed a prohibition on home-distilling as part of the distilled spirits tax. McNutt argued that he would face federal criminal punishment if he pursued his distilling hobby including a $10,000 fine and up to five years of imprisonment. Lower court judges found that the prohibition was unconstitutional.

McNutt’s lawyers argued that the prohibition on home distilling constitutes a burdensome tax on his private activity. The federal government collected $11.1 billion in alcohol taxes in fiscal year 2023, according to the Congressional Research Services. About $6.8 billion of that revenue was from distilled spirits.

“Under the logic required to uphold the prohibition, ‘Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity,’ including ‘[h]ome-based businesses’ and ‘[r]emote work,'” McNutt’s lawyers wrote in a brief to the court.

Lawyers for the federal government argued that Congress intended to set a specific prohibition against home distilling to protect businesses with a license to serve spirits. The lawyers pointed to spirit taxes dating to the First Continental Congress to justify the current prohibition, arguing the case does not apply to other activity inside a home.

“Congress had before it evidence that small stills in particular were being hidden in locations —including homes—where inspection was rendered effectively impossible,” lawyers for the government wrote.

While the high court chose to take up a case out of Texas, another petition from Ohio resident John Ream challenges the same law. However, in Ream’s case, the lower court upheld the prohibition on home distilling that prevented him from pursuing his hobby.

The government argued that home distilleries were often created to avoid federal taxes on spirits, an issue dating back to the founding of the country. McNutt’s and Ream’s lawyers urged justices on the high court to rule against the government in considering whether the prohibition falls amid the clause given to Congress when excising taxes.

“The better course is to take this ‘opportunity to reaffirm that the Necessary and Proper Clause means the same thing regardless of the enumerated power Congress invokes and to provide lower courts with a coherent and reliable framework that preserves Congress’s legitimate incidental authority without allowing that authority to become a general federal police power,’” Ream’s lawyers wrote.

The Buckeye Insitute, a group that filed a petition advocating for the prohibition’s end, celebrated the high court’s decision to take up the case.

“Our country’s founders would be rolling over in their graves to learn that a pastime in which even George Washington partook, which is as American as apple pie and certainly a lot older, has quite absurdly been turned into a federal crime,” said Robert Alt, president and CEO of The Buckeye Institute.

Justices on the high court likely will hear arguments in the case in the beginning of 2027. The court will release a decision on the legality of home distilling by July 2027.

[Editor’s note: This story originally was published by The Center Square.]