OPINION:
Could the federal government ban home-cooked meals? The government apparently thinks so — or at least that is the apparent implication of its argument in McNutt v. U.S. Department of Justice, a case working its way through the courts.
Thankfully, a three-judge panel of the 5th U.S. Circuit Court of Appeals has rejected the government’s argument, playing its part in keeping the federal government’s powers in check.
In 1868, Congress enacted a law imposing a tax on distilled spirits and banning the distillation of such spirits at home. In 2014, Rick Morris, “a connoisseur of bourbon whisky and a certified bourbon steward,” founded the Hobby Distillers Association with the goal of legalizing at-home hobby distilling.
The government argued that Congress’ ban on at-home distilling was an exercise of its power under the Constitution’s tax clause and necessary and proper clause. Much could be written about the deficiency of this claim, but the most fundamental obstacle the government’s argument faces is the word “proper.”
As James Madison explained in Federalist No. 45, the federal government’s powers under the Constitution “are few and defined.” It is up to the state governments, not the federal government, Madison explained, to regulate “all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.”
Issues of local concern, as Alexander Hamilton said in Federalist No. 17, “can never be desirable cares of a general jurisdiction.”
The necessary and proper clause vests in Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” the powers vested by the Constitution in the federal government. In Federalist No. 33, Hamilton denounced as ridiculous claims made during the ratification debates that the Constitution gave the federal government vast power.
He wrote that “moderation itself can scarcely listen to the railings which have been so copiously vented against” the necessary and proper clause.
Chief Justice John Marshall, in the 1819 case McCulloch v. Maryland, gave the most famous and influential explication of the necessary and proper clause. Despite generally being taken as an expansive reading, he nonetheless explained that any actions taken by Congress pursuant to the clause must be “within the scope of the Constitution,” “appropriate” and “consist[ent] with the letter and spirit of the Constitution.”
The at-home distilling ban is certainly not “consist[ent] with the letter and spirit of the Constitution.”
The federal government has only those powers specifically vested in it by the Constitution. Most government power, as the 10th Amendment explains, is “reserved to the States respectively, or to the people.” If the Constitution did grant Congress the power to regulate local issues, such as at-home distilling, then it would most certainly not have been ratified.
The states and their residents expected state and local governments, not the federal government, to continue regulating local affairs. That is why Hamilton needed to respond negatively in Federalist No. 33 to the claim that the necessary and proper clause granted the federal government vast power.
The government’s argument in this case is that, because some people engaging in home distilling might not report their activities and thus may evade the tax on the distillation of spirits, banning at-home distilling is a necessary and proper exercise of Congress’ taxing power.
That theory, if accepted by the courts, would give Congress virtually unlimited regulatory power over local activities. As the 5th Circuit recognized, “Under the government’s logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity.”
As we at Advancing American Freedom pointed out in our amicus brief, that would include banning home cooking.
After all, “Congress could levy a tax on all production of food … and then ban at home food production” to “ensure that the excise tax on cooking was paid.” That is hardly a government of “few and defined” powers.
It remains to be seen whether the government will seek en banc review or appeal to the Supreme Court. Regardless, as the framers anticipated, the government will surely continue to look for ways to expand its power.
For now, the 5th Circuit’s decision stands as a bulwark against unconstitutional government action. Americans should be grateful for the court’s diligence.
• J. Marc Wheat is general counsel at Advancing American Freedom.
Please read our comment policy before commenting.