Plaintiffs challenging the prohibition on home distilling claim the 1868 law is an antiquated relic of Reconstruction-era politics. They argue that Congress overstepped its taxation powers when it enacted the home distilling ban as part of a tax reform measure designed to curb fraud by commercial distillers.

Government attorneys counter that Congress properly restricted where spirits can be distilled to prevent producers from evading federal excise taxes. They warn that lifting the ban would violate Supreme Court precedent and erode congressional powers.

Federal law makes home distilling a crime punishable by a maximum sentence of five years in prison and a $10,000 fine.

Separate challenges to the law divided two federal circuit courts, which issued conflicting decisions in April, only 11 days apart.

A three-judge panel from the Sixth U.S. Circuit Court of Appeals upheld the federal ban in a case brought by John Ream, a brewpub owner from Newark, Ohio, who wants to distill whisky at home for his personal consumption.

A Fifth Circuit panel ruled in favor of different plaintiffs — members of the Texas-based Hobby Distillers Association — and concluded that statutory prohibitions on in-home distilling are outside the scope of Congress’ taxing power under the Constitution.

The Supreme Court agreed to review the Fifth Circuit decision, which was the Justice Department’s preference.

Plaintiffs’ attorney Robert Alt said they are “thrilled” that the Supreme Court agreed to hear the case.

“Our country’s founders would be rolling over in their graves to learn that a pastime in which even George Washington partook, which is as American as apple pie and certainly a lot older, has quite absurdly been turned into a federal crime,” Alt said in a statement.

Attorneys for the plaintiffs in both cases argue that Congress could ban a broad array of activities inside private homes — including cooking, gardening and remote work — under the government’s interpretation of the 19th century law.

“The importance of this case and the questions it presents could hardly be overstated,” the plaintiffs’ lawyers wrote. “It presents fundamental questions of the extent of federal power and the powers reserved to the states and the people.”

Justice Department attorneys said the government’s regulation and taxation on the production of distilled spirits is as old as Congress itself. They noted that Congress outlawed home distilling to prevent those producers from evading taxes or government inspections.

“And because the location restrictions were enacted only after lengthy experience with tax evasion, upholding those restrictions would not open the door to hypothetical laws restricting other conduct lacking that history,” they wrote.

The government says Ream asked the Supreme Court to resolve an “additional question” of whether location restrictions on home distilling exceed the scope of Congress’s power to regulate interstate commerce. But the government urged the high court to avoid that question, saying it wasn’t part of Ream’s case or the government’s current arguments in either case.

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