From Weed to Whiskey: Is This the Supreme Court's Next Big Commerce Clause Case?

What’s at stake in Ream v. U.S. Department of the Treasury

Earlier this week, lawyers for Ohio craft brewery owner John Ream, who wants to distill hard liquor at home for his own personal use but is barred from doing so by federal law, asked the U.S. Supreme Court to hear what could prove to be a major case about the reach of federal power.

The case is Ream v. U.S. Department of the Treasury. At issue is the constitutionality of the federal ban on home distilling. 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. "If Congress can regulate this under the Commerce Clause," protested Justice Clarence Thomas in dissent, "then it can regulate anything—and the Federal Government is no longer one of limited and enumerated powers."

The petition for writ of certiorari in Ream seeks to overturn the ruling in Raich that earned Thomas' ire. "At bottom," argues the brief filed by Ream's legal team, "this case asks whether the federal government must still identify an enumerated power before sending Americans to prison for what they do at home." As for the Raich precedent, the brief urges SCOTUS to "overrule Raich or at least clarify that Congress's commerce power does not extend to regulation of local, noncommercial conduct and that its exercise is subject to meaningful judicial scrutiny."

A case about the legality of home distilling would be a fitting addition to the Supreme Court's Commerce Clause jurisprudence. That's 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.

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. Still, according to the Supreme Court, that extra wheat nevertheless counted as "Commerce…among the several States" for federal regulatory purposes because Filburn's actions exerted a "substantial economic effect" on the national wheat market by growing a product that he might otherwise have bought.

The Raich case later extended that logic to cover the intrastate cultivation and consumption of medical marijuana and its "impact" on the national black market in controlled substances.

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.

Time will tell if a shot of homemade whiskey will produce a different legal result than a puff of homegrown weed.