Blog By: Jack Klier

At the federal level of U.S. law, producing distilled spirits at home constitutes a felony.[1] In addition, it is prohibited to have a still (the apparatus that distills the spirit) on premises connected to a residence, with violations punishable up to five years in prison, a $10,000 fine, or both.[2] Unlike the federal ban on distilling spirits at home, there is a personal use exception for the brewing of beer and wine at home as long as it is not sold.[3] This disparity in the law has been recently challenged in the United States District Court for the Northern District of Texas on the grounds that the ban is unconstitutional for exceeding the taxing power of Congress.[4] This ruling has been appealed and the federal ban remains enforceable through a judicial stay, but the constitutional questions remain until a final decision is reached.[5]

In Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau, the plaintiffs, members of an organization advocating for the legalization of home distilling, sued the Alcohol and Tobacco Tax and Trade Bureau (TTB), alleging that Congress lacked the enumerated power to ban home distillation.[6] The TTB first argued that Congress possessed the enumerated authority to “tax and spend” under Article I, Section 8 of the Constitution.[7] The Northern District Court of Texas rejected this argument, stating that Congress only made it a crime to distill at home, with no reference to any taxation.[8] The court further rejected an argument by the TTB based on the Necessary and Proper Clause of the Constitution, stating that the prohibition of at-home distillation is not connected clearly enough to the need to lay and collect taxes.[9] Finally, the court also rejected the TTB’s argument that the Commerce Clause protected the statutes at issue, stating that the statutes did not sufficiently connect home distillation with interstate commerce.[10] Based on these conclusions, the court ruled the statutory bans on home distillation unconstitutional, throwing the status quo out of the window.[11]

This is an interesting debate that is far more layered than might be obvious at first glance. The best argument for banning home distillation overall is that it is inherently dangerous to public health.[12] Possessing stills and distilling at home includes the risk of stills exploding and the risk of concentrating methanol, which is toxic upon consumption.[13] However, the power to regulate for the public health and safety is reserved to the states under the Tenth Amendment of the U.S. Constitution, not the federal government, so the TTB must tie its regulation back to one of the federal government’s enumerated powers.[14]

The argument for the ban must then come primarily from the Commerce Clause. In Wickard v. Filburn, the Supreme Court ruled that Congress can regulate purely local activities for personal use if the aggregated effect of those activities would impact interstate commerce.[15] In this situation, the issue is whether home distillation of spirits would, in the aggregate, disrupt the national spirit market. If it would, the holding in Wickard would suggest that Congress has the authority to regulate it.[16] The Supreme Court further extended the federal government’s regulatory powers to illegal activities that collectively create a market that affects interstate commerce in Gonzales v. Raich, where home-grown marijuana was banned.[17] In this situation, if there was a large market for home-made spirits, that would threaten interstate commerce by further disrupting the national spirit market.

In addition to the Commerce Clause argument, the TTB also argues that a federal ban is necessary and proper to executing its taxing power.[18] The government is required to tax all distilled spirits produced in the U.S.[19] To do this, the government must be able to identify when and where spirits are produced. If spirits could be made at home, then how could the government trace all spirits to ensure they carry the proper tax? This would mean that the government must do what is necessary and proper to fulfill its duty to tax all spirits.

These are strong arguments, but in Hobby Distillers, the court rejects them by stating that at-home distillation in the context of hobby distilling is not an economic activity.[20] The court held that a hobby distiller making a bottle of whiskey for themselves is not an economic activity and there is not a market for hobbyist spirits that would threaten the national market.[21] The court further held that the law regulates the location and existence of home distilling before any spirits are produced that would require taxation, indicating that this is not a taxation issue at heart.[22] If there is no taxation problem, then the necessary and proper argument is invalidated and the federal ban is unconstitutional as it would be exercising a police power belonging to the states.[23] The court framed this ban as a prohibitory penalty and not a tax because no revenue was being collected.[24]

Although this is a complicated issue, the ruling in Hobby Distillers will likely be overruled on appeal. While the court introduces compelling arguments to invalidate the ban being necessary and proper to Congress’s taxation power, allowing this case to stand would arguably overturn Wickard. It has long been held that Congress can regulate private activity if there is any chance the private activity will affect interstate commerce, and in this case, home production of spirits would likely have enough of an effect on the national market to warrant regulation.[25] Accordingly, while the tax argument by the government is lacking and raises interesting constitutional questions, Congress will likely still have regulatory power under the precedent established in Wickard.

[1] 26 U.S.C. § 5601(a)(8); 26 U.S.C. § 5178(a)(1)(B).

[2] 26 U.S.C. § 5601(a)(6); 26 U.S.C. § 5601(a)(1).

[3] Pub. L. No. 95-458, § 2, 92 Stat. 1255 (1978).

[4] Hobby Distillers Ass’n v. Alcohol and Tobacco Tax and Trade Bureau, 740 F. Supp. 3d 509 (N.D. Tex. 2024).

[5] Milan N. Ball, Hobby Distillers Association v. Alcohol and Tobacco and Trade Bureau: The Limits on Taxing Schemes to Regulate Behavior, Congressional Research Service, https://www.congress.gov/crs-product/LSB11305 [https://perma.cc/C6ED-TQR2].

[6] Hobby Distillers, 740 F. Supp. 3d at 517.

[7] Hobby Distillers, 740 F. Supp. 3d at 523-26.

[8] Id.

[9] Hobby Distillers, 740 F. Supp. 3d at 530.

[10] Hobby Distillers, 740 F. Supp. 3d at 534.

[11] Hobby Distillers, 740 F. Supp. 3d at 536.

[12] Matthew Bruner, To Distill, or Not to Distill? A Look at Home Distilling Legality, Fintech (Dec. 1, 2025), https://fintech.com/blog/to-distill-or-not-to-distill-a-look-at-home-distilling-legality [https://perma.cc/EH9P-3WYG].

[13] Id.

[14] U.S. Const. amend. X.

[15] Wickard v. Filburn, 317 U.S. 111, 129 (1942).

[16] Id.

[17] Gonzales v. Raich, 545 U.S. 1 (2005).

[18] Hobby Distillers, 740 F. Supp. 3d at 526.

[19] 26 U.S.C. § 5001.

[20] Hobby Distillers, 740 F. Supp. 3d at 533.

[21] Hobby Distillers, 740 F. Supp. 3d at 532-33.

[22] Hobby Distillers, 740 F. Supp. 3d at 525.

[23] Hobby Distillers, 740 F. Supp. 3d at 530.

[24] Hobby Distillers, 740 F. Supp. 3d at 524.

[25] Wickard, 317 U.S. at 129.