The Constitution created a federal government of limited powers, among which is the authority to raise revenue via taxation. But now the government argues that the power to tax implies the power to ban various activities. That argument, if accepted, would strike a serious blow at our Constitution’s federalist design.

John Ream, like many hobbyists, would like to engage in the American tradition of home distilling for his own personal use. This tradition dates back to the American Founding. In fact, George Washington had a large distillery near his home in Mt. Vernon. But because of an 1868 federal law, Americans like Ream are prohibited from home distilling. If Ream pursues his hobby and disobeys the ban, he faces the prospect of imprisonment and substantial fines. So he brought suit, alleging that the home-distilling ban violates the U.S. Constitution.

In defending the law, the government argued that the federal tax power implies a broader power to ban private, noncommercial conduct like home distilling if that conduct could facilitate tax evasion. The theory goes that if distilling occurs in the home, it would be too easy for the distiller to avoid paying the required taxes on the activity.

The district court dismissed Ream’s complaint for lack of standing and did not reach the merits. Ream has now appealed to the Sixth Circuit Court of Appeals, and Cato has filed an amicus brief in support of Ream.

In our brief, we make three key points. First, the use of the tax power to prohibit at-home distilling goes too far. The home-distilling ban does not resemble other incidental tax rules that the government cites as analogues, such as rules mandating specific bottle labels, tax stamps on taxed products, or particular measuring instruments. An outright prohibition on distilling spirits in the home has a far more tenuous relation to collecting revenue than the other rules the government cites.

Second, NFIB v. Sebelius (2012) makes it clear that it is impermissible for federal tax laws to regulate individual behavior in a way that the federal government could not do via its power to regulate interstate commerce. In other words, uses of the tax power must truly serve a revenue-generating purpose. But in the case at hand, Congress regulates conduct—distilling at home for personal use—that does not raise revenue and is entirely distinct from tax collection. Thus, the statutory prohibition is an impermissible attempt to utilize the tax power as a hook for a federal police power.

Third, questions of health, safety, and morals that do not involve transmitting goods and services across state lines are the exclusive province of the states. This key tenet of federalism undercuts the government’s argument that it can regulate conduct in Americans’ homes through the tax power. There is no limiting principle to the government’s argument that it may prohibit taxable conduct that occurs within the home. The government’s logic, if accepted by courts, would allow Congress extraordinary discretion to displace state and local laws and to regulate—apparently without limits—private, personal conduct using the taxing power.

The Sixth Circuit should overturn the decision below and make clear that the federal government cannot use its taxing power to subvert federalism and invade Americans’ liberties.