The Supreme Court has been asked to decide whether a federal law barring the home distilling of alcohol is unconstitutional, after a pair of federal appeals courts issued conflicting rulings on the legality of the longstanding statute.The Buckeye Institute, a conservative think tank, is backing an appeal to the high court asking the justices to look at whether the “federal prohibition on home distilling exceeds Congress’s enumerated powers” and if the Supreme Court should clarify the scope of Congress’s powers to regulate under the commerce clause. The petition to the Supreme Court is an appeal of the U.S. Court of Appeals for the Sixth Circuit’s ruling upholding the law as constitutional, which came less than two weeks after the U.S. Court of Appeals for the Fifth Circuit found the law was unconstitutional.
“Asked which enumerated power authorizes that prohibition, the government answered: the power to tax the very conduct it prohibits,” the petition to the Supreme Court said. “Banning the taxed activity, on this theory, is a ‘necessary and proper’ means of taxing it. The Sixth Circuit accepted that theory and upheld the prohibition. And it did so eleven days after the Fifth Circuit, in a materially identical challenge to the same prohibition, rejected the same theory and held the prohibition unconstitutional.”
