WASHINGTON — The Supreme Court has agreed to decide whether the federal government can make it a felony to distill spirits at home, taking up a constitutional fight that a Newark brewery owner helped force and that Ohio’s attorney general has joined on federalism grounds.
The justices on Oct. 19 granted the Justice Department’s petition in Department of Justice v. McNutt, asking the court to revive a prohibition that dates to 1868 after a federal appeals court in New Orleans struck it down. The government’s appeal is the case the court will hear. But the dispute reached the justices because a second appeals court, in Cincinnati, ruled the opposite way eleven days later in a challenge brought by John Ream, who co-owns Trek Brewing Company in Newark and wants to make small amounts of whiskey in his own house.
Federal law has barred the production of distilled spirits “in any dwelling house” or in “any shed, yard, or inclosure connected with any dwelling house” since 1868, when Congress moved to protect its excise tax on liquor from widespread evasion. The ban is codified at 26 U.S.C. 5178(a)(1)(B) and enforced by a criminal provision, 26 U.S.C. 5601(a)(6), that carries a fine of up to $10,000 and up to five years in prison. Americans may legally brew beer and make wine at home for personal use. Distilling is the exception.
The question the court agreed to answer, as the Justice Department framed it, is whether the location ban “is necessary and proper for carrying into execution Congress’s enumerated power to lay and collect taxes.”
Two courts, two answers
In McNutt, four members of the Hobby Distillers Association and the association itself sued in Texas after the Alcohol and Tobacco Tax and Trade Bureau told them no permit exists that would let them distill at home. The lead plaintiff, Scott McNutt, lawfully distills fuel alcohol under a federal permit in a shed 261 feet from his house and wants to “tinker around” with beverage spirits, according to the court record. Another plaintiff, Rick Morris, founded the association and runs a company that manufactures stills.
On April 10, a unanimous panel of the 5th U.S. Circuit Court of Appeals held the ban unconstitutional. “While venerable, the statute violates the Constitution’s Taxation and Necessary and Proper clauses,” Judge Edith Jones wrote. The court reasoned that a ban on making spirits produces nothing to tax: the provisions, Jones wrote, “amount to an antirevenue provision that prevents distilled spirits from coming into existence.” The panel warned that the government’s logic has no stopping point. “Congress cannot prohibit intrastate activity solely because it might produce products hard to tax,” the court said, adding that under the government’s theory, “home-based businesses may be forbidden. Remote work may be deemed a crime.”
Eleven days later, on April 21, the 6th U.S. Circuit Court of Appeals upheld the same ban in Ream’s case. “We disagree with the district court’s conclusion that Ream lacks standing to bring his claims; but we hold that the ban is a necessary and proper means of collecting the federal excise tax on distilled spirits,” Judge Raymond Kethledge wrote. The court pointed to centuries of liquor-tax evasion, from the Whiskey Rebellion forward, and to the ease of hiding a still inside a home. “The home-distilling ban was lawful when enacted, and remains so today,” Kethledge wrote.
The man from Newark
Ream grew up in Ohio, worked as an aerospace engineer in Seattle and homebrewed beer for nine years before he and his wife, Kristin, returned to Ohio in 2018 and opened their Newark brewery and taproom, according to the 6th Circuit’s opinion. He has researched distilling extensively but has not bought a still, because possessing one to make beverage spirits at home is a federal crime. In his 2024 lawsuit, Ream said he did not want to break the law but believed the federal government should not “have this level of intrusion into my home and hobbies.”
Both sets of challengers are represented by the Buckeye Institute, a Columbus-based public-interest law firm. Andrew Grossman, a Buckeye senior legal fellow and the challengers’ counsel of record, said the case reaches beyond hobbyists: “This case is important not only for would-be home distillers, but for everyone concerned about the legitimate constitutional limits on the federal government’s authority.” Buckeye president Robert Alt put it more colorfully: “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.”
The Justice Department argues the ban is a practical tool of tax collection, not a power grab. “Congress restricted home distilling because a distiller can more easily conceal a distilling operation or thwart necessary inspections — thereby evading the requisite tax — if the still is located in a dwelling-house or connected structure,” Solicitor General D. John Sauer wrote in the government’s petition. The challengers answer that the historical record does not support that rationale: their filings note that an 1867 congressional report blamed the era’s tax losses on fraud by large commercial distillers, and that two tax inspectors of the period said they had never found an illegal still hidden in a home.
The Hobby Distillers Association, which counts roughly 1,300 members, called the grant “a major step for HDA, our members, and everyone who has supported the effort to change federal home-distilling laws,” while cautioning that “there is still a lot of work ahead.”
Ohio backs review — but Ohio law would still say no
Ohio is formally on the challengers’ side of the federalism question. Attorney General Andy Wilson led a brief by 15 states urging the court to take Ream’s case, writing that Ohio “stands shoulder to shoulder with Ream against the federal ban on home distilling” because it “believes in federalism first.” The brief closes one section with a flourish: “Unlike a good whiskey, this split will not age well.”
Wilson’s brief also points to an oddity created by the split. Because the 5th Circuit’s injunction protects members of the Hobby Distillers Association wherever they live, “other Ohioans — perhaps even Ream’s neighbors — might be protected from federal enforcement of the home-distilling ban, while he is left dry.”
A victory for the challengers, however, would not by itself let Ream fire up a still in Newark. Ohio is a liquor-control state: it allows regulated homebrewing and home winemaking, but it requires a license for anyone who distills, and state law makes unlicensed home distilling a misdemeanor. Striking down the federal ban would remove the felony exposure — and the risk of federal forfeiture — but Ohio lawmakers would still have to change state law before home distilling became legal in Ohio.
What happens next
Ream’s own petition, which also asked the justices to reconsider a 2005 decision that upheld federal power over locally grown marijuana, has not been granted or denied. It is expected to be held until the court decides McNutt, and the question the court took up is confined to Congress’s taxing power.
No date for oral argument has been set, according to the court’s docket, and written arguments on the merits have not yet been filed. A decision is expected by the end of the court’s term next summer. If the court sides with the 5th Circuit, a prohibition older than the light bulb will fall. If it sides with the 6th Circuit and the government, the still in the shed stays a federal crime — in Ohio and everywhere else.
