Have a Drink

If you are a fan of the Moonshiners TV show, then McNutt v. U.S. Dep’t of Justice is for you. The Fifth Circuit summarized: “For more than 150 years, Congress has prohibited home distilleries as an adjunct to the law establishing a federal excise tax on distilled spirits. …  [W]hile venerable, the statute violates the Constitution’s Taxation and Necessary and Proper clauses.”

Specifically, the Court held that prohibiting individuals from distilling spirits at home is not “plainly adapted” to Congress’s enumerated power to tax distilled spirits. The statutes do not facilitate tax collection—rather, they prevent the creation of taxable products altogether. Citing McCullogh v. Maryland, the Court emphasized that “the Necessary and Proper Clause cannot expand the reach of the taxing power to criminalize conduct that could produce taxable revenue under the pretext that generating revenue for the federal government will be enhanced.”

The Court also held that the law is not “proper” because it effectively exercises a general police power reserved to the states, rather than legitimately carrying into execution the federal taxation power. In sum, the Court was that the government’s theory lacked a meaningful limiting principle, allowing Congress to ban virtually any home-based conduct on the mere possibility that it might conceal taxable activity. No. 24-10760; Apr. 10, 2026