What happened?

A federal law that has banned Americans from distilling spirits at home for more than 150 years is now in legal limbo after two federal appeals courts reached opposite conclusions about whether the ban is constitutional. [](#ngr-c6a46536-7eb1-4953-9ef2-69e7bd030955)

The Fifth Circuit struck down the prohibition in April, ruling it violated the Constitution's limits on Congress's taxing power. Weeks later, the Sixth Circuit upheld the same ban, concluding Congress had the authority to keep it in place. That split means Americans in different states now live under different rules.

Why Does it Matter to Me?

Right now, making distilled spirits at home is a federal crime, no matter what state you live in. The federal excise tax on distilled spirits runs $13.50 per proof gallon, and the Alcohol and Tobacco Tax and Trade Bureau enforces the ban nationwide.

If you live in Louisiana, Mississippi, or Texas, the Fifth Circuit's ruling blocks federal enforcement against people in those states. If you live in Kentucky, Michigan, Ohio, or Tennessee, the Sixth Circuit's decision means the ban still applies in full. Everyone else remains in a gray zone until Congress or the Supreme Court settles the question.

Both sides, now

The Fifth Circuit, in McNutt v. U.S. Department of Justice, reasoned that the home distilling ban doesn't raise tax revenue; it simply criminalizes behavior. Because Congress's taxing power requires that a law actually bring money into the federal treasury, the court said the ban crossed a constitutional line. The court also said the prohibition stepped on powers the Constitution reserves to the states.

The Sixth Circuit, in Ream v. Department of the Treasury, agreed the ban couldn't stand on the taxing power alone, but said it was still lawful under a separate constitutional authority, the Necessary and Proper Clause, which gives Congress flexibility to pass laws that support its broader powers. Both courts cited the same 2012 Supreme Court precedent but read it differently.

On the legislative side, Rep. Diana Harshbarger introduced the Freedom to Home Distill Act on Aug. 27. The bill would remove home distillers from federal excise tax rules entirely. The current administration has been defending the ban in court. Congress has not yet acted on the bill.

What happens next?

The Freedom to Home Distill Act was referred to the House Committee on Ways and Means, where members will decide whether to advance it. The federal government asked the Fifth Circuit to reconsider its ruling with a full panel of judges in May; that request was denied.

Until that happens, or until Congress acts, the law will mean different things depending on where you live.

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