An Ohio Brewery Owner, a Copper Pot Still, and the Future of Federal Power
It is not every day that a man's desire to make a small batch of bourbon at home winds up at the steps of the United States Supreme Court. But John Ream, an accomplished aerospace engineer and brewery owner from Ohio, would like to try his hand at making bourbon. There is only one problem: federal law prohibits distilling spirited beverages at home. Rather than accept that prohibition quietly, Ream and his attorneys at the Buckeye Institute decided to fight it — and now, he has filed a petition in the Supreme Court of the United States asking it to hear his case, which raises important questions about the limits of federal power.
The case, formally known as Ream v. U.S. Department of the Treasury, has attracted serious attention not just from whiskey lovers and home distilling hobbyists, but from constitutional law scholars, libertarian legal theorists, and anyone who has watched the federal government's reach expand in ways the Founders could scarcely have imagined. At its heart, this is a story about bourbon — but underneath, it is a story about the limits of Washington's authority over what Americans do in their own kitchens, garages, and barns.
The Law That Never Left: A 158-Year-Old Prohibition
Home distilling is as American as apple pie, and certainly a lot older. George Washington's Mount Vernon estate featured a distillery that, by 1799, was producing more than 10,000 gallons of whiskey per year. The idea that a man cannot distill spirits on his own property, for his own personal enjoyment, is a relatively modern invention — and a politically motivated one at that.
Congress barred distilling inside any "dwelling house" or "shed, yard, or inclosure connected with a dwelling house" in what was, by all indications, a sop to the temperance movement. Later, Prohibition killed off what remained of craft spirits production. The home-distilling ban ultimately survived both Prohibition and repeal, along with the distilled-spirits tax. What was born as a 19th-century concession to moral reformers hardened into a permanent feature of federal law, one that is still on the books more than a century and a half later and still carries felony-level penalties for those who violate it.
Ream alleged that the ban exceeds Congress's enumerated powers, and he sought to distill whiskey at home for personal use but refrained due to felony penalties. His attorneys at the Buckeye Institute framed the lawsuit around a straightforward constitutional argument: the federal government's ban on the home distilling of spirit beverages exceeds Congressional authority under Article I of the U.S. Constitution and violates the Tenth Amendment. The logic is elegant in its simplicity. A man mashing grain, running it through a copper still, and filling a jar with the result — all within the confines of his own home, with no intention of selling a drop — is not engaged in interstate commerce by any reasonable definition. And yet, the federal government says it can regulate him anyway.
The Circuit Split: Fifth vs. Sixth
The Fifth Circuit Strikes Down the Ban
The litigation has already produced a dramatic and historically significant circuit split. In McNutt v. U.S. Department of Justice, the U.S. Court of Appeals for the Fifth Circuit ruled that the ban on home distilling cannot be justified as a revenue measure. The Fifth Circuit's decision, authored by Judge Edith Jones, was pointed and unsparing. On their face, Judge Jones noted in an opinion joined by the two other judges on the panel, the provisions challenged have nothing to do with collecting taxes. "Neither provision raises revenue," Jones wrote. "Not only do they prohibit at-home distilleries, but in so doing, they amount to an anti-revenue provision that prevents distilled spirits from coming into existence."
The Buckeye Institute's senior legal fellow Andrew M. Grossman argued the case before the United States Court of Appeals for the Fifth Circuit, which resulted in the blockbuster decision holding that the home-distilling ban exceeds Congress's authority under the taxing power and Necessary and Proper Clause. The ruling was also notable for what the government chose not to argue: the Fifth Circuit did not consider the Commerce Clause rationale because the government abandoned it on appeal.
That decision was a stunning legal victory for home distillers. The government's primary justification for the ban — protecting federal excise tax revenue — was rejected on its face. If you prohibit a thing from being made, you cannot then claim you're doing so to tax it.
The Sixth Circuit Pushes Back
Eleven days after the Fifth Circuit's ruling, the Sixth Circuit arrived at the opposite conclusion. In Ream v. Department of the Treasury, the Sixth Circuit upheld an 1868 federal law banning home alcohol distilleries, ruling that the law is authorized by a combination of Congress's tax power and the Necessary and Proper Clause, which gives Congress the power to make laws "necessary and proper" for carrying into execution other federal powers.
The U.S. Court of Appeals for the Sixth Circuit upheld the home-distilling prohibition, ruling that the ban, while not a tax, "is a necessary and proper means of collecting the federal excise tax on spirits," because stills could be hidden. The Sixth Circuit decision, written by Judge Raymond Kethledge, acknowledged that the law does not itself collect tax revenue — the same finding the Fifth Circuit made — but concluded that the prohibition was nonetheless a valid support mechanism for the broader federal excise tax framework.
The resulting circuit split is stark. The Sixth Circuit's decision in Ream v. U.S. Department of Treasury — ruling in favor of the government on the merits — sets up a circuit split between the U.S. Courts of Appeals for the Fifth and Sixth Circuits. That split is, by itself, one of the most compelling reasons the Supreme Court would feel compelled to weigh in. Federal law should not mean one thing in Texas and another in Ohio.
The Commerce Clause Problem — and Why It Changes Everything
While the circuit split over the tax power and the Necessary and Proper Clause is dramatic enough, the deeper legal earthquake waiting in this case involves the Commerce Clause — and specifically, whether the Supreme Court will use this case to reconsider one of the most controversial decisions in its modern history.
According to the federal government, the ban on making hard liquor at home is a legitimate exercise of the congressional power "to regulate Commerce…among the several States." As an authority for that view, the government has cited Gonzales v. Raich (2005), in which the Supreme Court upheld the federal ban on marijuana as applied to California medical marijuana patients whose use of the plant was legal under state law and whose cultivation and consumption of the plant took place entirely within the confines of that single state.
The Raich decision was enormously controversial and remains so. Justice Clarence Thomas protested in dissent: "If Congress can regulate this under the Commerce Clause, then it can regulate anything—and the Federal Government is no longer one of limited and enumerated powers." That dissent, written two decades ago, reads today like a prophecy — because here we are, watching the government invoke the same logic to tell an Ohio brewery owner he cannot make whiskey in his garage.
It is worth noting that the Sixth Circuit — like the Fifth Circuit — did not consider the stronger potential constitutional rationale for the home distillery ban: the Supreme Court's Commerce Clause decision in Gonzales v. Raich (2005). But there is a crucial difference between the two cases. Unlike in the Fifth Circuit case, in the Sixth Circuit case the government has not forfeited the Commerce Clause argument. So if the Supreme Court were to review this decision, they could consider that issue too. That prospect is what has constitutional scholars sitting up straight.
The Road from Wickard to Raich
To understand why the Commerce Clause dimension of this case matters so profoundly, you have to go back to 1942 — and an Ohio wheat farmer named Roscoe Filburn.
The line of cases that led up to Raich effectively started with 1942's Wickard v. Filburn, another case about the home production of a federally regulated item. Roscoe Filburn, the farmer at the center of that landmark case, grew extra wheat on his farm for his family's personal use, either to make flour for cooking or as feed for his livestock. The problem was that Filburn's extra wheat exceeded the maximum quota that had been set by federal regulators acting under the aegis of President Franklin Roosevelt's New Deal.
The New Dealers had established such quotas in the hopes of boosting prices by artificially restricting supplies. Filburn's extra wheat never entered the marketplace, nor did it cross any state lines. And yet the Supreme Court ruled that Congress could regulate it anyway, under the theory that Filburn's personal wheat consumption — aggregated with that of thousands of other farmers — had a "substantial effect" on interstate wheat prices. The aggregation principle was born, and with it, the seeds of a federal commerce power with no obvious limiting principle.
Raich doubled down on Wickard. If the aggregate consumption of homegrown cannabis by California patients could theoretically affect the national illegal drug market, then Congress could regulate it. Far too much mischief has been committed in the name of regulating interstate commerce that is neither interstate nor even commerce. The home distilling case offers the Court a chance to revisit that trajectory — and this time, there is a conservative supermajority on the bench that has shown far greater appetite for reining in federal power than any Court in recent memory.
Overruling Raich? The Stakes for the Constitution
The Ream case now asks the Supreme Court to fundamentally change its course on the Commerce Clause by overturning Raich and setting strict limits on what actually counts as a federally regulatable activity. That is an enormous ask — overruling a twenty-year-old precedent on one of the most foundational questions in constitutional law. But the current Court's record on federalism suggests it is at least willing to entertain the question.
For more than 50 years, the prevailing view was that there was no limit on Congress's power under the Commerce Clause — that is, until the federalism revolution of the 1990s. That revolution, led by Chief Justice William Rehnquist, produced Lopez v. United States (1995) and Morrison v. United States (2000), two decisions that said Congress's commerce power does have limits and that purely local, non-economic activity falls outside its reach. Raich threatened to swallow those limits, but the current Court's decisions in areas ranging from the Affordable Care Act to the major questions doctrine suggest the justices are hunting for new tools to check congressional overreach.
The Buckeye Institute's attorneys — Andrew M. Grossman and Robert Alt — have framed the constitutional question with a clarity that gives the Court a workable hook. If Congress can prohibit home distilling, what would stop it from banning home bread baking, sewing, or vegetable gardening? It is a question that sounds rhetorical but carries genuine doctrinal weight. Under a strict reading of Wickard and Raich, the answer is: nothing at all. Under any common-sense understanding of a government of limited powers, the answer should be: the Constitution itself.
The split between the Fifth and Sixth Circuits on the home-distilling ban's constitutionality is reason enough for the Supreme Court to take Ream's case, resolve this conflict, and provide national uniformity in the law. But there's also a need for further clarity on the Commerce Clause and Raich's continued viability. Given the massive growth of the federal government and its intrusion into every facet of modern life, there are few issues more important or pressing for the Court's consideration.
The Plaintiffs and Their Lawyers: A Buckeye Institute Crusade
Andrew M. Grossman and Robert Alt represent John Ream in his litigation and also the plaintiffs who prevailed before the Fifth Circuit. Alt is President and CEO of The Buckeye Institute, where Grossman is a Senior Legal Fellow. The Buckeye Institute is a Columbus, Ohio-based free-market think tank with a long track record of bringing constitutional challenges to federal power, and this pair of companion cases — Ream out of Ohio and McNutt out of Texas — represents perhaps their most consequential legal project to date.
The plaintiffs in the companion McNutt case have a concrete story that illustrates the human costs of the federal ban. Liquor hobbyists do sometimes face threats of federal prosecution. In 2014, Scott McNutt received a "Notice of Potential Civil and Criminal Liability" from the Treasury Department's Alcohol and Tobacco Tax and Trade Bureau (TTB). The TTB said it had reason to believe McNutt "may have purchased a still capable of producing alcohol and/or equipment and materials that may be used in the manufacture of a still." It warned that "federal law provides no exemptions for the production of distilled spirits for personal or family use" at any location other than a government-approved distillery.
Read that again: a man bought copper tubing and some fermentation equipment — the kind of gear any homebrew supply shop sells openly — and the federal government sent him a letter threatening criminal prosecution. Given the spotty enforcement of the ban, as reflected in the fact that vendors openly supply home distillers with the equipment they need, that test will often be hard to meet. But the threat is real, and the felony penalties are real, and they hang over the heads of tens of thousands of Americans who pursue what should be a perfectly legal hobby.
Ream's own standing to bring the case was contested at the Sixth Circuit. The Sixth Circuit ultimately ruled in favor of the government on the merits but ruled that John Ream does have standing to bring the case. That standing finding — allowing a would-be distiller to challenge the law before actually risking arrest — is itself a significant procedural victory, and it opens the door for the Supreme Court to reach the merits cleanly.
The Distillery Ban's Shaky Constitutional Foundation
At the district court level, the arguments cut in the challengers' favor. The district court rejected the government's arguments about the scope of federal power, finding that the prohibition on home distillery was outside the scope of federal constitutional power and therefore unconstitutional. The district court's opinion carefully distinguished between the home distillers' case and previous Supreme Court opinions about the scope of the Commerce Clause.
The government's tax-power argument received similarly rough treatment. The only federal legislation the government could point to that might qualify as a comprehensive interstate regulatory framework was the system of federal taxation. The challengers successfully argued that federal taxation as such simply does not qualify as the kind of comprehensive regulatory framework that can trigger the operation of the Commerce Clause. In other words, you cannot launder a constitutional deficiency through the tax code.
The government's fallback argument — that prohibiting home distilling protects excise tax revenue because home distillers are more likely to hide their production — faces its own problems. The government claimed that the ban on home distillery was enacted to protect federal tax revenue, because people who distill at home — as compared to those who distill outside the home — are more likely to hide it from the federal government. But as Judge Jones observed in the Fifth Circuit ruling, a law that prevents spirits from ever being produced cannot credibly be called a revenue-protection measure. Revenue requires a product to tax. A law that eliminates the product eliminates the revenue right alongside it.
Weed, Wheat, and Whiskey: A Constitutional Trinity
The historical poetry of this moment is not lost on constitutional scholars. A case about the legality of home distilling is a fitting addition to the Supreme Court's Commerce Clause jurisprudence. That is because the line of cases that led up to Raich effectively started with 1942's Wickard v. Filburn, another case about the home production of a federally regulated item. Wickard involved home wheat production. Raich involved homegrown marijuana. Now Ream involves home-distilled whiskey. The trilogy — wheat, weed, whiskey — traces the entire arc of the Supreme Court's expanding Commerce Clause jurisprudence, and each case offers a chance to either extend or curtail that arc.
Time will tell if a shot of homemade whiskey will produce a different legal result than a puff of homegrown weed. But the legal landscape has shifted considerably since 2005. The current Court has demonstrated a pronounced skepticism toward federal regulatory overreach, and several justices — most notably Clarence Thomas — have spent years laying intellectual groundwork for revisiting Raich directly.
It is also worth noting what has changed culturally and politically since Raich. The case was decided in 2005, when the war on drugs was still at something of a peak, and the Court — including Justice Antonin Scalia — bent the Commerce Clause to its breaking point in order to uphold federal drug enforcement. Two decades later, the craft spirits industry has exploded. Home brewing is entirely legal and wildly popular. The concept of federal agents prosecuting a man for making bourbon in his garage strikes most Americans as somewhere between absurd and un-American. The Court is not immune to cultural context.
What a SCOTUS Win Would Mean for Whiskey Culture
For the bourbon and whiskey community, the implications of a Supreme Court ruling in Ream's favor would be profound and immediate. The craft distilling industry has grown enormously over the past decade, but home distilling — the natural complement to home brewing — remains entirely off-limits in the United States, making America an outlier among peer nations. New Zealand, Australia, and several European countries allow personal home distillation. American enthusiasts who want to experiment with grain selection, yeast strains, fermentation temperatures, and distillation cuts are legally barred from doing so.
The practical consequences of legalization would likely mirror what happened with home brewing after it was federally legalized in 1978. Hobbyists would experiment freely. Some of them would develop serious skills. Some of those skilled amateurs would eventually go professional, just as hundreds of craft brewers did in the decades after homebrewing was legalized. The pipeline of talent and innovation that feeds the commercial craft industry would expand dramatically.
More immediately, a ruling limiting or overturning Raich would reshape the constitutional landscape around federal regulatory power in ways that extend well beyond whiskey. These home-distilling challenges present a new opportunity for the Supreme Court to check congressional authority under the Commerce Clause, while also applying proper limits under the taxing and Necessary and Proper Clause. A decision that actually draws those limits would have implications for federal environmental regulations, gun laws, drug enforcement, and a range of other areas where Congress has claimed commerce-power authority over activities that bear only the most attenuated connection to actual interstate trade.
The Road Ahead: Will SCOTUS Take the Case?
The Supreme Court takes only a small fraction of the petitions filed with it each year. But the factors favoring certiorari here are unusually strong. There is a genuine circuit split — a Fifth Circuit decision striking down the ban, a Sixth Circuit decision upholding it — that creates real legal uncertainty for Americans depending on which side of a state line they happen to live on. There is a significant unresolved constitutional question about whether Raich should survive in a Court that has taken federalism far more seriously than the 2005 majority did. And there is a sympathetic plaintiff: a law-abiding brewery owner who simply wants to make bourbon at home.
Robert Alt, President and Chief Executive Officer of The Buckeye Institute and an attorney for Mr. Ream in this case, issued the following statement: "John Ream will seek Supreme Court review of this decision, and looks forward to being vindicated." The petition was filed in July 2026, and the Court could decide whether to grant certiorari as early as its next conference cycle.
Whether the justices take the case or not, the litigation has already accomplished something valuable: it has forced a serious public reckoning with a federal prohibition that most Americans did not know existed, and that almost none of them can justify on the merits. For much of American history, evading excise taxes on liquor has been nearly a national pastime. At the time of the Revolution, one historian has written, "nearly every farmer distilled his own whiskey and deemed it his inalienable right to evade the tax, and resist the collector whenever a favorable opportunity presented itself for doing so." That tradition runs deep in American bones.
John Ream is not trying to evade any tax. He is not trying to sell moonshine out of the back of a truck. He is an aerospace engineer and a brewery owner who understands fermentation science, who appreciates what makes a good whiskey, and who simply wants to practice his craft in his own home without fear of federal prosecution. The question before the Supreme Court is whether the Constitution permits the federal government to stop him. The answer, to a growing number of legal minds on both the left and the right, is plainly no.
The Ream case asks the Supreme Court to fundamentally change its course on the Commerce Clause by overturning Raich and setting strict limits on what actually counts as a federally regulatable activity. Time will tell if a shot of homemade whiskey will produce a different legal result than a puff of homegrown weed. But one thing is clear: the constitutional case for the home-distilling ban is weaker than at any point in the past century, the legal momentum is building, and the nation's highest court now has every reason to pour itself a glass of this question and give it its full attention.
