U.S. Supreme Court likely to decide legality of homemade whiskey

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(The Center Square) – For a Central Ohio man hoping to continue making whiskey at home one thing now seems certain – the U.S. Supreme Court will decide the case.

The U.S. Fifth Circuit Court of Appeals ruled recently that the federal ban against home whiskey distilleries is unconstitutional.

However, a separate appeals court, the Sixth Circuit, issued an opposite decision, upholding the 150-year old federal law. 

John Ream, a distiller from Newark, is a plaintiff in that case. He is represented by a nonprofit Ohio-based group, The Buckeye Institute, the organization’s spokeswoman, Lisa Gates, told The Center Square.

 “John Ream will seek Supreme Court review of this decision, and looks forward to being vindicated,” Robert Alt, President and Chief Executive Officer of the institute said in a statement.

Andrew M. Grossman, senior legal fellow at the Buckeye Institute said the two different appeals court rulings create a “circuit split.” Those typically are decided by the U.S. Supreme Court.

“We anticipate the U.S. Supreme Court resolving the conflict between the U.S. Courts of Appeals for the Fifth and Sixth Circuits,” he said in a statement.

The federal government argued that the law is constitutional because it was enacted to prevent tax evasion and that it would be easier for a distiller working out of their home to conceal the business and therefore avoid paying taxes.

The Fifth Circuit, however, disagreed in its ruling.

“Congress cannot prohibit intrastate activity solely because it might produce products hard to tax.” the court ruled. “Put otherwise, preventing activity lest it give rise to tax evasion places no limit whatsoever on Congress’s power under the taxation clause.”

The Sixth Circuit, however, came to a different conclusion.

The power of Congress to impose taxes does not give it the power to ban home distilleries, the court ruled Tuesday. But another section of the Constitution, the “Necessary and Proper Clause,” does, the appeals court ruled.

“The home distilling ban was lawful when enacted and remains so today,” the court ruled.

The Sixth District ruling also questions whether the courts should second guess Congress on a long-standing law.

“We should not be so eager to police the limits of Congress’s power, that we exceed the limits of our own,” the appeals court ruling said.