I have somewhat mixed feelings about this.
A federal judge in Texas has ruled that a 156-year-old ban on at-home distilling is unconstitutional, siding with a group that advocates for legalizing the ability of people to produce spirits like whiskey and bourbon for their personal consumption.
U.S. District Judge Mark Pittman, an appointee of Republican former President Donald Trump in Fort Worth, on Wednesday agreed with the Hobby Distillers Association’s lawyers that the longstanding ban exceeded Congress’s taxing power and ran afoul of the U.S. Constitution’s Commerce Clause.
He issued a permanent injunction barring the ban from being enforced against the Hobby Distillers Association’s members but stayed his decision for 14 days so the government could seek a stay at the appellate court level.
Devin Watkins, a lawyer for the Texas-based hobby group at the libertarian think tank Competitive Enterprise Institute, said in an email the ruling “respects the rights of our clients to live under a government of limited powers.”
The U.S. Department of Justice, which defended the law, did not respond to a request for comment.
The hobby group, along with four of its 1,300 members, sued agencies tasked with enforcing the ban in December, arguing the government’s regulatory reach could not extend to activities conducted within their homes.
They filed their lawsuit against agencies including the Alcohol and Tobacco Tax and Trade Bureau (TTB), a division of the U.S. Department of the Treasury that regulates and collects taxes on alcohol, and the Justice Department, which can prosecute felony violations.
[…]
The Justice Department argued the ban was a valid measure designed by Congress to protect the substantial revenue the government raises from taxing distilled spirits by limiting where plants could be located.
But Pittman said the ban, which is incorporated into two separate statutes, was not a valid exercise of Congress’s taxing power as it did not raise revenue and “did nothing more than statutorily ferment a crime.”
“While prohibiting the possession of an at-home still meant to distill beverage alcohol might be convenient to protect tax revenue on spirits, it is not a sufficiently clear corollary to the positive power of laying and collecting taxes,” he wrote.
He said the ban on producing spirits at home likewise could not be sustained under Congress’ power to regulate interstate commerce, saying it did not further a comprehensive interstate market regulation given that there were “many aspects of the alcohol industry that Congress has left untouched.”
This is the first I had heard of this, though I did mention the Hobby Distillers Association and their then-nascent efforts towards legalizing their activities way back in 2014. That Reuters story, which I just stumbled across, is the only mainstream account I’ve seen as of the weekend; all the Google news searches have led to stories on rightwing and obscure-to-me sites. Boing Boing has a decent summary, which notes that this is still a pretty limited ruling, as “federal authorities have the power to seize and forfeit equipment, property, and even land used in illegal distilling operations” even after the ruling, so don’t go crazy just yet.
I favor the principle that people should be able to engage in home distilling. We have legalized home brewing and home winemaking, I don’t see a sufficient distinction between them and home distilling to warrant banning the latter. State laws would need to be updated as well to really allow this activity, and I’d be in favor of that. Let people make their booze at home if they want.
The flip side to this is who was working with the Hobby Distillers Association and what their larger goals are. This Observer story from May gets into that, noting that groups like the Competitive Enterprise Institute and the super-evil Federalist Society had their hands in this case (though not with the Hobby Distillers’ blessing). This bit at the end sums up my ambivalence:
Eric Segall, constitutional law professor at the Georgia State University College of Law, told the Observer he disagrees with the larger goals of the Competitive Enterprise Institute. But Segall said he believes hobby distillers have a strong argument: Home distillation does not appear to be an “economic activity” the government can regulate under the Commerce Clause. “If it goes to the Supreme Court, it’s highly likely that the law will be struck down. … As currently constituted, the Supreme Court will not be sympathetic to this law.”
Since 1937, the Supreme Court has ruled against the federal government’s power to regulate commerce only three times, Segall said. While he doesn’t believe a win for the plaintiffs would damage the Commerce Clause doctrine, Segall says it would be a symbolic political victory for right-wing libertarians.
“The stakes aren’t that high. But it’s always a sunny day for the Federalist Society, if the Court strikes down a law under the Commerce Clause,” Segall said.
Yeah. I’d much rather that Congress pass a law, or amend the existing law, to carve out this exception. Leave the Commerce Clause out of it. It might be a wise move for the Justice Department to let this slide and not appeal it, so as to contain the damage. We’ll see what happens.
The law itself is little more than a remnant from a time when taxes on distilled spirits was pretty much the federal government’s prime source of revenue. It’s long past time to be rid of it in favor of a regulatory approach. In particular, the rules should be put in place to protect public and neighbors, as unlike home brewing or winemaking, distilling uses a somewhat pressurized still, which with carelessness, essentially can become a small bomb!