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The Supreme Court could legalize moonshine, and ruin everything else

McNutt v. DOJ could allow the justices to seize tremendous power over the US economy.

On Friday, a federal appeals court struck down a nearly 160-year-old federal law prohibiting people from distilling liquor in their own home.

That’s a fairly momentous event in its own right — any claim that a law that’s been on the books since Reconstruction is unconstitutional should be greeted with a heaping spoonful of skepticism. But the United States Court of Appeals for the Fifth Circuit’s decision in McNutt v. US Department of Justice is particularly significant because it is all but certain to be heard by the Supreme Court, and this case may tempt the Court’s Republican majority to impose restrictions on federal power that have not existed since the early stages of the New Deal.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

Although the justices normally get to choose which cases they wish to hear, the Court almost always agrees to hear a case “when a lower court has invalidated a federal statute.”

McNutt potentially raises a question that the Supreme Court resolved in the Franklin D. Roosevelt administration, but that many right-leaning lawyers and legal scholars have wanted to reopen for many decades. These Roosevelt-era decisions permit Congress to regulate the American workplace, such as by banning child labor or establishing a minimum wage. They also allow many federal regulations of private businesses to exist, including nationwide bans on whites-only lunch counters and other forms of discrimination.

The Constitution gives Congress sweeping authority over the national economy. But, for a period of several decades beginning in the late 19th century, the Supreme Court strictly limited the federal government’s power to regulate commercial activity that occurs entirely within one state. In Hammer v. Dagenhart (1918), for example, the Court struck down a federal law that sought to ban child labor, on the theory that most child workers’ jobs do not require them to cross state lines.

The Court abandoned this strict divide between national and local economic activity during the New Deal era — Hammer was overruled in 1941. But many prominent conservative legal thinkers, including Justices Clarence Thomas and Neil Gorsuch, have called for a return to the more limited approach to federal power that drove the Hammer decision.

Clarence Thomas’s newest opinion would literally bring back child labor

McNutt tees up a potential Supreme Court showdown over Congress’s ability to regulate economic activity that occurs within a single state because the new case challenges a ban on alcohol distilling within the home. Most people’s houses do not cross state lines.

That said, there is a wrinkle in the McNutt case that may make it more difficult for justices who want to relitigate the New Deal to do so in this case. For reasons that aren’t entirely clear, the Justice Department, which is defending the ban in court, decided not to make its strongest legal argument on appeal — the argument that the ban on home distilling fits within Congress’s broad authority to regulate the national economy. So, if there are five justices who want to overrule some of the Roosevelt-era decisions establishing that Congress’s power over the economy is very broad, they will have to do so despite the fact that the DOJ seems to want to avoid........

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