Amicus Brief: Ream v. U.S. Dept. of Treasury

Federal law taxes the production of distilled spirits. Since 1868, federal law also prohibits the production of distilled spirits in the home and puts stiff penalties on those who operate a home still. John Ream is a former aerospace engineer who now operates a brewpub in Ohio. He wants to expand into experimenting with creating his own distilled spirits—not for sale, and only for personal home consumption—but he was blocked by the law. Represented by Manhattan Institute adjunct scholar Andrew Grossman, Mr. Ream challenged the law as an unconstitutional expansion of Congress's powers to tax and to regulate interstate commerce. 

The government cited Congress's taxing power as authority for the law, which is odd because that means it’s prohibiting the thing it wants to tax. It also cited the power to regulate commerce—which is arguably the most expansive congressional power—but even that has limits. In an interesting turn of events, the Fifth Circuit invalidated the ban on home distilling, while the Sixth Circuit upheld a nearly identical challenge. A date with the Supreme Court is inevitable, but the question remains: where in the Constitution, if anywhere, is Congress's power to ban home distilling? 

Now on petition for Supreme Court review, the Manhattan Institute has filed a brief that focuses on Congress’s authority over interstate commerce. We argue that the Court should take this opportunity to overturn or at least narrow Gonzalez v. Raich (2005), which is the broadest expansion of that regulatory power. Raich asked whether Congress could prevent someone from growing marijuana at home for personal use in a state that had legalized medical marijuana. The Supreme Court ruled that Congress’s regulatory reach extended that far because even that personal growth and consumption was part of the (illegal) interstate market for marijuana. Raich didn’t evaluate whether any government had sufficiently established that marijuana was bad, but instead asked which lawmaking bodies are responsible for that policy decision: states legislatures or Congress. That's what federalism is about: who gets to decide.

Mr. Ream's challenge to the federal ban on home distilling poses a similar question. If Congress can ban something that’s produced in the home, never sold, and consumed on-site as part of a regulation of interstate commerce, then it’s hard to imagine what isn’t "interstate commerce." True federalism requires that states have at least some ability to decide their own policies—and no one is disputing that a state can ban home distilling if it wants to. The Supreme Court should take this opportunity to roll back its own most expansive interpretation of Congress's commerce power. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Addison Gills