Supreme Court Takes Up the Home Distilling Ban. Can Congress Ban Your Home Still to Collect the Tax?
Scott McNutt wants to distill at home and says he is “willing to pay whatever tax is needed.” On October 19, 2026, the Supreme Court agreed to hear his challenge to the federal home distilling ban in Department of Justice v. McNutt.
Let’s put a number on that tax: assuming lawful home production could qualify for the Craft Beverage Modernization Act’s reduced federal rate, the tax would be $2.70 per proof gallon on the first 100,000 proof gallons removed annually. A proof gallon equals one U.S. gallon at 100 proof, or its alcohol equivalent. At 80 proof, that’s about 43 cents per 750-milliliter bottle. A $100 annual bill would correspond to about 46.3 gallons, or 234 bottles. If you drank that yourself over a year, you’d average nearly eleven 1.5-ounce pours daily. The tax bill would probably not be your biggest problem.
That arithmetic also helps explain why the history deserves a closer look. In 1867, Washington charged $2 per proof gallon—roughly $48 in today’s dollars, using the Minneapolis Fed’s 2026 estimate, about eighteen times the current reduced rate. The distillers’ brief cites an 1867 report describing a tax that exceeded the spirits’ value and “offer[ed] great temptations for the evasion of its payment.” With that much at stake, moonshining and bribery had an obvious financial appeal.
Congress cut the rate to fifty cents in 1868 while retaining the restriction on distilling at home. Those choices help frame today’s dispute. A smaller tax reduces what a home-distilling hobbyist could save by hiding a batch, but the government argues that keeping production on readily inspected premises improves collection overall. The question is whether that benefit justifies excluding people who would register, pay the tax, and submit to inspection. At $2 per gallon and not $48 per gallon, there is no incentive to hide from the collector.
The Necessary and Proper Clause supplies the constitutional test that SCOTUS took up here and it is the reason the case is getting its day in court. It gives Congress room to choose practical ways of carrying out its taxing power; Congress need not prove that its chosen method is “indispensable.” But the method must be “plainly adapted” to that purpose and respect the Constitution’s limits on federal authority. That leaves the courts to decide whether this prohibition sufficiently serves tax collection or claims more power than collecting a tax permits.
The Fifth Circuit held the ban unconstitutional, viewing it as excluding potential taxpayers from a system already equipped to regulate them. Registration, inspection, and penalties could govern home distillers, just as they govern other producers. Instead, the court explained, “the statutes reduce revenue by preventing individuals from making distilled spirits.”
Conversely, the Sixth Circuit accepted the government’s broader collection argument in Ream. That Circuit found for the government reasoning that Congress could conclude that many home producers would fail to pay and that their spirits would replace taxed commercial purchases. As the court put it, “The ban thus shifts consumption from untaxed spirits to taxed spirits—thereby increasing revenue.” It therefore upheld the prohibition as “necessary and proper.” That disagreement over how Congress may protect the revenue makes this a good case for Supreme Court review as a Circuit Split.
The government’s reliance on past evasion also makes the competing histories worth sorting out – if for nothing else than that the parties disagree on the reason for the ban and none have addressed the idea that a $2 per gallon tax today is not an incentive to not pay taxes. The distillers’ Fifth Circuit brief called the ban “a concession to the burgeoning temperance movement.” Yet the Congressional Globe passage cited for that proposition concerns temperance opposition to lowering the tax; it does not itself establish that Congress adopted the home-distilling ban to win over those opponents. Their Supreme Court response instead emphasizes that the restriction passed “without reported debate.” The cited material leaves the claimed compromise less firmly supported than the appellate brief’s wording suggests.
For hobbyists, a victory would remove the federal location prohibition while leaving other permitting, tax, inspection, and state-law requirements in place. The Fifth Circuit described the result as putting home distilleries on the “same level as current licensees.” The larger stakes concern the boundary of federal power: how far may Congress restrict what people do at home because their activities might prove difficult to tax? That was a main argument raised by the Fifth Circuit opinion – what couldn’t the government ban in your home in the name of protecting the tax if we allow them to ban this? The Court should give us an answer that explains both the collection authority and its limits.
