{"id":47743,"date":"2026-04-11T15:40:48","date_gmt":"2026-04-11T15:40:48","guid":{"rendered":"https:\/\/foreignnewstoday.com\/?p=47743"},"modified":"2026-04-11T15:40:48","modified_gmt":"2026-04-11T15:40:48","slug":"fifth-circuit-strikes-down-federal-law-banning-home-alcohol-distilleries","status":"publish","type":"post","link":"https:\/\/foreignnewstoday.com\/?p=47743","title":{"rendered":"Fifth Circuit Strikes Down Federal Law Banning Home Alcohol Distilleries"},"content":{"rendered":"<p><br \/>\n<\/p>\n<div>\n<figure id=\"attachment_8377346\" aria-describedby=\"caption-attachment-8377346\" style=\"width: 300px\" class=\"wp-caption alignnone\"><img fetchpriority=\"high\" fetchpriority=\"high\" decoding=\"async\" class=\"size-medium wp-image-8377346\" alt=\"\" width=\"300\" height=\"200\" data-credit=\"NA\" srcset=\"https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-300x200.webp 300w, https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-1024x683.webp 1024w, https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-768x512.webp 768w, https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling.webp 1200w\" data-lazy-sizes=\"(max-width: 300px) 100vw, 300px\" src=\"https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-300x200.webp\"\/><noscript><img fetchpriority=\"high\" fetchpriority=\"high\" decoding=\"async\" class=\"size-medium wp-image-8377346\" src=\"https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-300x200.webp\" alt=\"\" width=\"300\" height=\"200\" data-credit=\"NA\" srcset=\"https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-300x200.webp 300w, https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-1024x683.webp 1024w, https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling-768x512.webp 768w, https:\/\/reason.com\/wp-content\/uploads\/2026\/04\/Home-Distilling.webp 1200w\" sizes=\"(max-width: 300px) 100vw, 300px\"\/><\/noscript><figcaption id=\"caption-attachment-8377346\" class=\"wp-caption-text\">Home distilling.\u00a0(NA)<\/figcaption><\/figure>\n<p>\u00a0<\/p>\n<p>Yesterday, in <a href=\"https:\/\/storage.courtlistener.com\/recap\/gov.uscourts.ca5.220672\/gov.uscourts.ca5.220672.116.1.pdf\"><em>McNutt v. US Department of Justice<\/em><\/a>, the US Court of Appeals for the Fifth Circuit struck down an 1868 federal law banning home alcohol distilleries. The court ruled that the law exceeded Congress&#8217; authority under the taxing power, and also under the Necessary and Proper Clause. It&#8217;s an important win for constitutional federalism &#8211; as well as for home alcohol distillers! But it&#8217;s significance is limited by the fact that the court did not consider the possibility that the law is authorized by Congress&#8217; power to regulate interstate commerce.<\/p>\n<p>The decision was written by prominent conservative Judge Edith Jones. But the unanimous ruling was joined by liberal Obama appointee Judge James Graves. It&#8217;s an impressive, and somewhat unusual, cross-ideological agreement on the type of federalism issue that often splits jurists along ideological lines.<\/p>\n<p>Judge Jones is, I think, undeniably right to argue that the tax power cannot justify this law:<\/p>\n<blockquote>\n<p>[T]he power to &#8220;lay and collect Taxes&#8221; means Congress can charge or demand money from taxpayers. It is also obvious that the purpose of a tax is to raise revenue for the<br \/>government. Indeed, &#8220;the <em>essential<\/em> feature of any tax&#8221; is that &#8220;[i]t producesat least some revenue for the Government.&#8221;<em>NFIB v. Sebelius<\/em>, 567 U.S. 519, 564 (2012)\u2026 (emphasis added)\u2026.<\/p>\n<p>Section 5178(a)(1)(B) and Section 5601(a)(6) exceed these constitutional limits. Primarily, neither provision raises revenue. Not only do they prohibit at-home distilleries, but in so doing, they amount to an anti-revenue provision that prevents distilled spirits from coming into existence. Cf. 26 U.S.C. \u00a7 5001(b) (taxation begins &#8220;as soon as [the spirit] is in existence&#8221;). The provisions operate to <em>reduce<\/em> revenue instead of raising it. This violates the Supreme Court&#8217;s explanation of how the federal power of taxation works: &#8220;[I]mposition of a tax nonetheless leaves an individual with <em>a lawful choice<\/em> to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.&#8221; <em>NFIB<\/em>, 567 U.S. at 574, 132 S. Ct. at 2600 (emphasis added). These plaintiffs have only the choice not to do as they wish or risk fines and imprisonment.<\/p>\n<\/blockquote>\n<p>Exactly so.<\/p>\n<p>The Fifth Circuit also concludes that the law in question exceeds Congress&#8217; authority under the Necessary and Proper Clause, which grants the power to makes laws &#8220;necessary and proper&#8221; for carrying into execution other federal powers. I think the court is right that the law in question is not &#8220;proper.&#8221; The Supreme Court, in <a href=\"https:\/\/www.oyez.org\/cases\/2011\/11-393\"><em>NFIB v. Sebelius<\/em> <\/a>(2012), ruled that a &#8220;proper&#8221; power permissible under the Clause is one that is &#8220;ancillary&#8221; to the implementation of an enumerated power. It cannot be a &#8220;great, substantive and independent&#8221; power. See my analysis in <a href=\"https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=2167381\">this article<\/a>. The power claimed here is clearly &#8220;great and independent.&#8221; As Judge Jones notes, &#8220;[u]nder the government&#8217;s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity.&#8221;<\/p>\n<p>I am much less persuaded by the court&#8217;s conclusion that the law here is not &#8220;necessary.&#8221; In <a href=\"https:\/\/www.oyez.org\/cases\/1789-1850\/17us316\"><em>McCulloch v. Maryland<\/em><\/a> (1819), Chief Justice John Marshall famously ruled that &#8220;necessary&#8221; includes any measures that may be &#8220;useful&#8221; or &#8220;convenient&#8221; for implementing an enumerated power. I am no fan of this formulation, and tend to believe Thomas Jefferson and James Madison were right to argue that &#8220;necessary&#8221; means something like &#8220;essential.&#8221; But Marshall&#8217;s approach is longstanding precedent, unlikely to be overturned. This formulation is so permissive that I cannot think of any other modern precedent that struck down a federal law on the grounds that it isn&#8217;t &#8220;necessary.&#8221;<\/p>\n<p>Judge Jones instead relies on another passage from <em>McCulloch<\/em>, which defines &#8220;necessary&#8221; as &#8220;plainly adapted,&#8221; and thus is potentially more restrictive. But &#8220;useful&#8221; and &#8220;convenient&#8221; are the standard formulations embodied in in numerous precedents. And, on that approach, the home distillery ban probably does qualify as &#8220;necessary.&#8221; For example, it might be &#8220;useful&#8221; or &#8220;convenient&#8221; to advancing the government&#8217;s goal of increasing tax revenue, by incentivizing people to engage in activities subject to taxation, rather than home distilling.<\/p>\n<p>Even if the home distillery ban is &#8220;necessary,&#8221; it still isn&#8217;t &#8220;proper.&#8221; The Fifth Circuit therefore got the bottom line right.<\/p>\n<p>But I would not celebrate too much, just yet. Though this law is not authorized under the tax power or the Necessary and Proper Clause, it could pass muster under Congress&#8217; power to regulate interstate commerce, which the Fifth Circuit did not consider, because the government chose not to argue this issue on appeal.<\/p>\n<p>In <a href=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/545\/1\/\" data-mrf-link=\"https:\/\/supreme.justia.com\/cases\/federal\/us\/545\/1\/\"><em>Gonzales v. Raich<\/em> (2005)<\/a>, the Supreme Court held that Congress&#8217; power to &#8220;regulate commerce\u2026 among the several states&#8221; gives it the authority to forbid the possession and distribution of medical marijuana that had never crossed state lines or even been sold in any market within a state. I believe <em>Raich<\/em> is one of the Supreme Court&#8217;s worst-ever federalism decisions. I laid out the reasons why in <a href=\"https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=916965\" data-mrf-link=\"https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=916965\">a 2006 article<\/a> written soon after the ruling came down. But the Supreme Court doesn&#8217;t seem inclined to overrule <em>Raich<\/em>, and indeed refused to hear <a href=\"https:\/\/reason.com\/volokh\/2025\/12\/04\/the-supreme-court-should-hear-case-seeking-to-overturn-gonzales-v-raich\/\">a case that offered a good opportunity<\/a> to reconsider it, just a few months ago.<\/p>\n<p><em>Raich<\/em> held that the Commerce Clause gives Congress almost unlimited power to regulate any &#8220;economic activity&#8221; defined as any activity involving\u00a0the &#8220;production, distribution, and consumption of commodities.&#8221; Alcoholic beverages are pretty obviously commodities, and home distilling involves their production and distribution.<\/p>\n<p>Thus, if the federal government is so inclined, it could potentially try to continue to enforce this law and &#8211; if challenged again &#8211; defend it under the Commerce Clause. When and if that happens, I hope the Supreme Court will take the opportunity to overrule or at least limit <em>Raich<\/em>. But I am not optimistic it will happen, at least not in the near future.<\/p>\n<p>As the Fifth Circuit notes, there is at least <a href=\"https:\/\/www.buckeyeinstitute.org\/issues\/detail\/ream-v-us-department-of-treasury\">one other case<\/a> challenging this law, currently before the Sixth Circuit (the district court in that case had dismissed it on procedural grounds). We shall see what happens with it.<\/p>\n<p>\u00a0<\/p>\n<\/p><\/div>\n<p><br \/>\n<br \/><a href=\"https:\/\/reason.com\/volokh\/2026\/04\/11\/fifth-circuit-strikes-down-federal-law-banning-home-alcohol-distilleries\/\">Source link <\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Home distilling.\u00a0(NA) \u00a0 Yesterday, in McNutt v. US Department of Justice, the US Court of Appeals for the Fifth Circuit struck down an 1868 federal law&hellip;<\/p>\n","protected":false},"author":1,"featured_media":47744,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[29],"tags":[],"class_list":["post-47743","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=\/wp\/v2\/posts\/47743","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=47743"}],"version-history":[{"count":0,"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=\/wp\/v2\/posts\/47743\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=\/wp\/v2\/media\/47744"}],"wp:attachment":[{"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=47743"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=47743"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/foreignnewstoday.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=47743"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}