The federal government claims broad taxing powers to regulate Americans’ lives, including the power to ban private, noncommercial conduct like home distilling.

Americans proudly distilled spirits in and around their homes since the nation’s Founding Era. In fact, George Washington’s distillery near his home in Mt. Vernon was large enough to require two workers to live on-site. Today, however, U.S. law makes it a felony to have a homestead distillery like Washington’s.

Scott McNutt, like many hobbyists, would like to engage in the American tradition of distilling spirits on his private property for his personal use. But he cannot because an 1868 federal law prohibits home distilling. So McNutt joined other hobbyists and sued the government, alleging that the “at-home distilling” ban violates the U.S. Constitution.

The government responded and justified its distilling ban with an unusual and far-reaching argument: when a taxable event would occur in a home, the government can use its taxing power to prohibit Americans from engaging in that practice entirely. On this reasoning, the federal government claims broad powers to regulate Americans’ lives, including the power to ban private, noncommercial conduct like home distilling.

The district court correctly held that the taxing power does not include the tremendous authority the government claims. The government has appealed to the Fifth Circuit Court of Appeals, and Cato has filed an amicus brief supporting McNutt.

Our brief makes three points. First, although courts often defer to Congress’s power to enact laws that are incidental to tax statutes, prohibiting at-home distilling goes too far. The ban does not resemble other laws that the government cites as analogs, like laws requiring bottle labels, tax stamps on taxed products, or the use of specific measuring instruments. Such laws directly improve tax collection efficiency. An outright prohibition on home distilling has a far more tenuous relation to collecting revenue, and the precedents the government relies on do not apply here.

Second, the scope of Congress’s taxing power is limited. The Supreme Court was clear in NFIB v. Sebelius (2012) that tax provisions cannot be used as a roundabout way of regulating individual behavior that would not be reachable via the Commerce Clause. The taxing power must serve a revenue-generating purpose. But the criminalization of at-home distilling does not raise revenue. Congress here regulated conduct—distilling at home for personal use—remote from tax collection, transforming a purported tax power into something resembling federal police powers.

Finally, the government’s argument would upend our federal system of government. The federal government argues that it can broadly regulate conduct in Americans’ homes, provided those regulations are disguised as tax provisions. But health, safety, and moral questions that do not involve the transmission of goods and services across state lines are the exclusive province of the states. The federal government offers no limiting principle to its contention that it may prohibit taxable conduct that occurs within the home.

The Fifth Circuit should affirm the ruling below and make clear that the federal government cannot use its taxing power to subvert federalism and Americans’ liberties.