The Supreme Court will decide whether Americans may legally distill whiskey at home, 158 years after Congress said no

Making beer at home is a hobby. Making whiskey at home is a federal crime, and has been since 1868. The Supreme Court has now agreed to decide whether it stays one.\n\nThe justices said on Monday they will hear Department of Justice v. McNutt, the government’s appeal defending the ban against a challenge brought by the Hobby Distillers Association, a Texas based nonprofit with about 1,300 members, and individual hobby distillers. The law, passed after the Civil War to combat liquor tax evasion, makes it an offence to distill spirits in a private home without authorisation, punishable by up to five years in prison and a fine of up to 10,000 dollars. One member of the association received a letter from the Alcohol and Tobacco Tax and Trade Bureau, part of the Treasury Department, threatening a fine of 500,000 dollars.\n\nThe case exists because two federal appeals courts read the Constitution in opposite directions this year. In April, the Fifth Circuit ruled that the ban is unconstitutional, finding that it exceeds what Congress may do under its power to tax: criminalising a private, non commercial activity inside a home, the court said, is not a necessary and proper means of collecting revenue. Days later, the Sixth Circuit reached the opposite conclusion in the case of John Ream, an Ohio engineer, holding that the prohibition is a legitimate exercise of the taxing power. Ream got into home brewing with a beer kit his wife gave him nearly two decades ago, and sued when he learned that trying the same craft with whiskey could cost him his home and his freedom. “Brewing is a nice blend of science and art,” he told CNN. “I would like to take the same skills that I’ve learned and try my hand at distilling.”\n\nThe government argues the ban sits squarely inside the tax power. Federal alcohol taxes brought in 11.1 billion dollars in fiscal year 2023, about 6.8 billion of it from distilled spirits, according to the Congressional Research Service. Government lawyers told the court that Congress had evidence small stills were being hidden in homes and other places where inspection was effectively impossible, and that a still nobody can inspect is a tax nobody can collect. The challengers answer that the logic proves too much: under it, their lawyers wrote, “Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity,” including home based businesses and remote work. Fifteen Republican led states, including Florida, Ohio and Idaho, have backed the challenge. Their attorneys general could not resist the line in their filing: “Unlike a good whiskey, this split will not age well.”\n\nRobert Alt, a lawyer for Ream, put the cultural case plainly: the 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.” Washington did distill, at Mount Vernon, commercially and legally in his own time. Arguments are expected early in 2027 and a decision by the end of June 2027. The ruling will either retire one of the oldest federal crimes still on the books or confirm that the tax power reaches all the way to a citizen’s own kitchen, garage and still.