The 5th U.S. Circuit Court of Appeals struck down the federal prohibition on home distilling Friday, ruling that a Reconstruction-era law dating to July 1868 exceeded Congress's constitutional authority to levy taxes. The decision affirms a growing judicial willingness to hold Washington to the boundaries the Constitution actually sets, not the ones federal lawyers wish it set.
Circuit Judge Edith Hollan Jones, writing for a three-judge panel, found that the ban suppressed tax revenue by outlawing distilling altogether rather than regulating and taxing it. That distinction matters. A government that claims the power to tax an activity, then criminalizes the activity entirely, is not exercising a taxing power. It is exercising a police power, one the Constitution never granted to Congress.
The ruling affirmed a July 2024 decision by U.S. District Judge Mark Pittman in Fort Worth, Texas, who found that Congress overstepped by turning home distilling into a felony. Pittman had paused enforcement of the ban while the federal government appealed. Now the appeals court has told the government, in substance, that the law was never a legitimate exercise of its taxing authority in the first place.
Congress passed the home distilling prohibition in July 1868, during Reconstruction, to combat rampant liquor tax evasion. For 158 years, the law remained on the books. Violators faced up to five years in prison and a $10,000 fine, penalties more severe than many violent-crime sentences handed down in progressive-run cities today.
The ban survived even the 1978 legalization of homebrewing, which President Jimmy Carter signed into law. Beer and wine enthusiasts won their freedom that year. Home spirits producers did not. For nearly five more decades, a hobbyist who brewed beer in his garage operated lawfully, while his neighbor distilling whiskey committed a federal felony.
That asymmetry caught the attention of the Hobby Distillers Association, which brought the challenge on behalf of four of its 1,300 members. The libertarian Competitive Enterprise Institute represented the plaintiffs. As the Daily Caller reported, the association argued that its members wanted to distill spirits at home for personal use, and were willing to pay excise taxes to do so.
That willingness exposed the absurdity of the government's position. Federal law barred the plaintiffs from even obtaining permits. They could not comply if they tried. The ban did not regulate distilling; it erased it.
Judge Jones's opinion drew a firm line. The court found that the tax code's home distilling ban "goes beyond Congress's taxation powers and is not 'necessary and proper' to carrying out that function," as the Washington Times reported.
Jones warned against reading the Constitution so loosely that Congress's taxing authority becomes a blank check. 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 carries weight well beyond whiskey. If Congress can ban an activity outright under the guise of its taxing power, then there is no activity it cannot ban. The court declined to open that door. In an era when federal courts are increasingly willing to enforce constitutional boundaries, the ruling fits a broader pattern of judges telling the government: show us where the Constitution grants you this authority, or stand down.
The decision does not create a nationwide free-for-all. State and local distilling regulations remain intact. The Competitive Enterprise Institute noted that the ruling affects only the federal prohibition; anyone who wants to distill spirits at home still needs to check their state's laws before firing up a still.
The federal government may also seek Supreme Court review. Given that the 5th Circuit has now declared a longstanding federal statute unconstitutional, the odds of a cert petition are not trivial. The High Court has been active this term on questions of federal power and statutory interpretation, from mail ballot deadline disputes to sovereign immunity questions.
Attorney Andrew Grossman, who argued the appeal, called the decision "an important victory for individual liberty" that lets the plaintiffs "pursue their passion to distill fine beverages in their homes," as the New York Post reported.
At first glance, this looks like a niche case about hobby distillers. It is not. The constitutional principle at the center of the ruling, that Congress cannot use its taxing power to impose a blanket criminal prohibition on lawful personal conduct, has implications far beyond moonshine.
For decades, the federal government has relied on expansive readings of its enumerated powers to regulate, restrict, and criminalize activities that the Founders never intended Washington to control. The Commerce Clause has been stretched. The taxing power has been stretched. The Necessary and Proper Clause has been treated less like a limiting principle and more like a permission slip. Courts that push back on that drift are doing exactly what Article III requires.
The 5th Circuit's ruling is a reminder that old laws are not automatically constitutional laws. A statute's age does not immunize it from scrutiny. If anything, a 158-year-old prohibition that has never been seriously challenged deserves more scrutiny, not less, especially when courts are re-examining longstanding legal doctrines across a range of federal disputes.
The Hobby Distillers Association and its four named members did something that sounds simple but rarely is: they asked the government to justify a law. The government could not. Two federal courts, a district judge and a three-judge appellate panel, agreed. The ban was not a tax measure. It was a prohibition dressed up in tax-code language, enforced with felony penalties, and left unchallenged for more than a century and a half.
Judge Pittman's original 2024 decision started the process. Judge Jones's opinion finished it at the circuit level. Whether the Supreme Court takes the case next remains an open question. But the principle the 5th Circuit established is clear: Congress's power to tax does not include the power to criminalize an activity and then claim the criminalization serves a revenue purpose.
That principle matters in an era when federal agencies and lawmakers routinely assert authority that the Constitution does not grant them. Whether the subject is FDA regulatory overreach, environmental mandates, or a Reconstruction-era distilling ban, the question is the same: where does the Constitution say you can do this?
When the government cannot answer that question, the courts should say so. On Friday, the 5th Circuit did.
A 158-year-old law fell not because the Constitution changed, but because someone finally asked the government to read it.
