Advancing American Freedom, joined by Liberty Justice Center, led a coalition of 36 co-amici filing an amicus brief in Ream v. U.S. Department of the Treasury, a case challenging a federal statute that bans at-home distillation of spirits
Federal law prohibits John Ream, an Ohio engineer who owns a craft brewery, from distilling whiskey in his own home for personal consumption. In lower courts, the government had argued that Congress had authority to pass this law under both the Commerce and Tax Clauses. This case and one out of the Fifth Circuit called McNutt v. U.S. Department of Justice could thus provide the Supreme Court with an opportunity to reconsider its ruling in Wickard v. Filburn (1942), a case that misinterpreted the Commerce Clause as giving Congress vast power over non-economic intrastate activities.
The Constitution establishes a government of limited and enumerated powers. As our brief argues, the original meaning of the Commerce Clause (“Commerce… among the several States…” ) is clear: commerce meant trade and among the states meant—well—among the states. Neither the Commerce Clause nor any other constitutional provision empowers Congress to enact a ban on a local and noncommercial activity like home distilling.
“Congress cannot regulate wholly local noncommercial activity under the Commerce Clause. The founding generation did not—and almost assuredly would not have—ratified a constitution that gave the federal government the power to prohibit the trivia of local life as home distilling,” said AAF General Counsel J. Marc Wheat. “If Congress can prohibit under the Commerce Clause such local, noncommercial activity as home distilling, it could usurp much of the power the constitutional bargain reserved to the states. The Supreme Court should resolve the split between the circuits and strike down the unconstitutional home-distilling ban.”