The 5th U.S. Circuit Court of Appeals on Friday struck down a Reconstruction-era federal ban on home distilling, ruling that Congress overstepped its constitutional taxing power when it criminalized the private production of spirits in 1868. The decision affirms a lower-court ruling and hands a clear win to hobbyists who argued the government had no business turning their kitchen stills into felonies.
Circuit Judge Edith Hollan Jones, writing for a three-judge panel, found that the law did the opposite of what a tax measure should do. Instead of regulating and taxing distilling, it banned the activity outright, suppressing the very revenue Congress claimed to protect. The New York Post reported that Jones described the ban as "an unnecessary and improper means for Congress to exercise its power to tax" because it prevented distilling rather than generating taxable production.
The ruling affirmed a July 2024 decision by U.S. District Judge Mark Pittman in Fort Worth, Texas, who found that Congress had overstepped by turning home distilling into a felony. Pittman paused enforcement while the government appealed. That appeal failed.
Congress passed the ban in July 1868 to combat liquor tax evasion during Reconstruction. For more than a century and a half, the statute made it a federal crime to distill spirits at home, punishable by up to five years in prison and a $10,000 fine. The penalty alone tells you how seriously Washington took the prohibition, even as it left homebrewing untouched after President Jimmy Carter signed legislation legalizing beer and wine production at home in 1978.
Home spirits production, however, remained a federal crime. The gap between beer and liquor was never justified on any coherent policy basis. Americans could brew beer in their garages. They could make wine in their basements. But fire up a still to produce a small batch of whiskey for personal use, and the federal government treated you like a bootlegger.
The Hobby Distillers Association and four of its 1,300 members finally challenged that disparity in court, with legal support from the Competitive Enterprise Institute. Their argument was straightforward: if the Constitution gives Congress the power to tax, that power does not extend to banning an entire activity. A tax is a tax. A prohibition is something else entirely.
The court agreed. As the Daily Caller reported, the 5th Circuit sided with the plaintiffs, finding the law exceeded Congress's constitutional authority to levy taxes.
Judge Jones's opinion went further than simply voiding an old statute. She drew a constitutional boundary. As she wrote for the panel:
"Without any limiting principle, the government's theory would violate this court's obligation to read the Constitution carefully to avoid creating a general federal authority akin to the police power."
That language matters. The federal government does not have a general police power, that authority belongs to the states. Jones was warning that if Congress can ban any activity it claims is related to tax collection, the taxing power becomes a blank check for federal regulation of private life. The court refused to sign that check.
The Washington Times reported that the court found the tax code's home distilling ban is not "necessary and proper" to carrying out Congress's taxing function. Jones argued the prohibition "failed to generate tax revenue" and overstepped federal authority by criminalizing private activities without a clear constitutional basis.
In an era when federal appeals courts have become central battlegrounds over the limits of government power, this ruling fits a broader pattern. Courts are increasingly willing to ask whether Washington's authority actually extends as far as bureaucrats and prosecutors have long assumed.
Attorney Andrew Grossman, who represented the plaintiffs, called the decision "an important victory for individual liberty" that lets his clients "pursue their passion to distill fine beverages in their homes."
But the ruling does not create a nationwide free-for-all. The Competitive Enterprise Institute noted that state-level distilling regulations remain intact. Home distillers will still need to comply with whatever laws their state imposes. The federal ban is gone; the patchwork of state rules is not.
That distinction is worth emphasizing. The 5th Circuit did not declare a constitutional right to distill. It said Congress used the wrong constitutional tool, the taxing power, to justify an outright prohibition. If Congress wanted to regulate home distilling through some other enumerated power, the court left that question unanswered.
The scope of the ruling also remains an open question. The 5th Circuit covers Texas, Louisiana, and Mississippi. Whether the decision applies nationwide or only within that jurisdiction will likely depend on how the federal government responds, and whether it seeks further review.
Recent terms have shown that higher courts are not shy about weighing in when lower courts push the boundaries of federal authority. If the government appeals, the Supreme Court may eventually have to decide whether a Reconstruction-era tax ban can survive modern constitutional scrutiny.
Strip away the whiskey barrels and copper stills, and this case is about something larger: whether Congress can use the taxing power as a backdoor to regulate anything it wants. The government's position was that banning home distilling was "necessary and proper" to enforce the tax code. The 5th Circuit said no, you cannot generate tax revenue by criminalizing the activity you claim to be taxing.
That logic has implications well beyond liquor. Federal agencies routinely justify expansive regulations by linking them, however loosely, to congressional taxing or spending powers. If the 5th Circuit's reasoning holds, it could force the government to draw tighter connections between the power it claims and the regulation it imposes.
The case also highlights how long bad law can survive when nobody challenges it. For 158 years, the home distilling ban sat on the books. Millions of Americans who brew beer and make wine at home never thought to ask why spirits were different. It took a small hobbyist association and a libertarian legal group to finally force the question.
That is how constitutional accountability works, not through grand legislative reform, but through citizens willing to press their claims in court and judges willing to read the Constitution as written.
The federal government's track record of defending overreach in major appellate battles has been mixed at best in recent years. This ruling is another reminder that "we've always done it this way" is not a constitutional argument.
When a law's only defense is that it has been around since Reconstruction, maybe it was past time someone asked whether it belonged there in the first place.
