Federal Appeals Court Strikes Down 1868 Home Distilling Ban
A federal appeals court has struck down a nearly 160-year-old law prohibiting home distilling, a decision that may now reach the Supreme Court. The U.S. Court of Appeals for the Fifth Circuit ruled in McNutt v. US Department of Justice that the ban, enacted in 1868, is unconstitutional. The Justice Department, in defending the law, chose not to cite the strongest legal precedents supporting federal power — Wickard v. Filburn (1942) and Gonzales v. Raich (2005) — and instead argued the ban was necessary to prevent tax evasion. The Vox article notes that the Fifth Circuit concluded the government “forfeited” any claim under broad commerce power. Because lower courts striking down federal statutes almost always trigger Supreme Court review, the case could allow the Court’s conservative majority to revisit New Deal-era decisions that expanded Congress’s authority to regulate economic activity within a single state. Justices Clarence Thomas and Neil Gorsuch have previously called for returning to a more limited view of federal power. The article highlights that such a shift could threaten many federal laws, including minimum wage, health insurance mandates, and anti‑discrimination statutes.
What’s reported
The Fifth Circuit struck down a federal law banning home distillation, originally enacted in 1868.
The case is McNutt v. US Department of Justice.
The Justice Department did not cite Wickard v. Filburn or Gonzales v. Raich in its brief defending the ban; the Fifth Circuit noted the government “forfeited” that argument.
The DOJ’s alternative argument was that the ban helps enforce the alcohol tax.
The Supreme Court nearly always hears cases when a lower court invalidates a federal statute.
Justices Clarence Thomas and Neil Gorsuch have called for a return to a more limited federal power approach.
New Deal-era decisions (e.g., Wickard v. Filburn) established broad congressional power over economic activity.
Key figures
Justice Clarence Thomas (U.S. Supreme Court)
Justice Neil Gorsuch (U.S. Supreme Court)
President Joe Biden (in office when DOJ brief was filed in October 2024)
Sources: vox.com
