Breaking the law in order to follow it

Is home distilling inching toward legalization?

I've visited at least a hundred distilleries and written about maybe half of them. If there's one conversation I've had most often with distillers, it's this (condensed):

:Me: How did you get started?

Distiller: [Silence]

Distiller: [More silence]

Distiller: Is this off the record?

Me: Yes, it's off the record.

They then tell me they got started by experimenting in a garage or basement, illicitly using whatever equipment they could cobble together. One now-established distiller showed me his first rig (off the record): a large soup pot with a stainless steel salad bowl C-clamped to the rim, plumbed with a condenser that involved a bit of copper pipe from Home Depot and a garden hose.

Such subterfuge has been required because of a curious Catch-22. You can't get your TTB license to distill until you can show that you're a proficient distiller. And you can't show you know how to distill until you get your license.

Distilling at home has been illegal since at least 1868. The statute that went into effect then is still in effect today. This banned the distilling of spirits “in any dwelling house, in any shed, yard, or enclosure connected with any dwelling house, or on board any vessel or boat.” Those in violation are subject to a fine of $10,000 or five years in prison, or both.

The statute has survived Prohibition and later attempts to reform liquor laws, including the Federal Alcohol Administration Act of 1935. That was a post-Prohibition scramble to impose some order on commerce of liquor between states and foreign nations and, critically, to protect federal tax revenues on alcohol. Corralling distillers in federally approved and monitored areas would help prevent tax leakage.

Several states have sought to put the camel’s nose under the tent by passing laws that nominally allow enterprising residents to make a little liquor in their basement. West Virginia, for instance, earlier this year passed a law allowing home distillers to make liquor at home—limited to five gallons each year. In doing so, West Virginia joins Alaska, Arizona, Maine, Massachusetts, Missouri, New Jersey, Ohio, and Rhode Island in being somewhat more permissive when it comes to home distilling than other states.

At least in theory. Because the federal government still prohibits home distilling, and federal law takes precedence. The state laws are essentially laws-in-waiting; when changes occur in federal law, they’ll be ready to go.

But in crafting the laws to chiefly protect tax revenues, the federal government may have made an unforced error. At least that’s what the Home Distillers Association decided to test out when it brought a suit against the TTB (the bureau that regulates alcohol) on both its behalf and that of home distillers in four states.

The home distillers argued that Congress actually never had the authority to impose this ban a century-and-a-half ago. The government countered that those suing didn’t have standing to sue. It’s not the first time an argument in a bar devolved into someone yelling “You can’t do that,” and the other person yelling back, “No, you can’t do that.”

The heart of the plaintiffs’ argument was this: taxes should produce income for the government since the ban was created to protect tax revenues. The plaintiffs asserted that “any law that does not require one to pay money into the treasury is not an exercise of the taxing power.” Hence, they argued, the ban on home distilling lacks authority.

Last July, libertarian-leaning Judge Mark Pittman of the Northern District Court of Texas, who was appointed to the federal bench by Donald Trump in 2019, agreed with the hobbyist distillers in Hobby Distillers Association et al. v. Alcohol and Tobacco Tax and Trade Bureau.

However, he found that only one of the four plaintiffs had standing to sue—a resident of New Jersey, a state that had passed laws allowing home distilling. Since he wasn’t allowed to fire up his stills because of federal law, he alone could claim that he was suffering from the federal ban. The other three distillers reside in states where home distilling is disallowed and so can’t claim any harm

The federal government appealed the ruling in August, but there’s been no action since.