Court Holds Federal Ban on Home-Distilling Exceeds Congress' Enumerated Powers [pdf] | Hacker News Reader

Court Holds Federal Ban on Home-Distilling Exceeds Congress' Enumerated Powers [pdf]

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50 pointsthebeardisred71 comments

Since we're already getting insta-reactions from people who haven't read the decision, here are some clarifying points:

* This is a district court decision, not even an appeals court much less the Supreme Court.

* This decision rests on an interpretation of Congress's powers and therefore has nothing to do with Chevron or Loper.

It's an interesting decision that may have repercussions if it's appealed, but not directly related to any recent drama.

I’m not a lawyer but my understanding is that lower courts try to see where SCOTUS is going and act accordingly. SCOTUS is going in the direction of limiting federal powers. This can be both good and bad and I’m not here commenting on what I think of this direction but it seems to me that recent decisions do play a role in terms of how the lower courts perceive the direction of things.

they're not supposed to do that, which is why this decision devotes so many pages to explaining how this decision is actually in accordance with all the previous court decisions that somehow mysteriously failed to strike down this law at any time in the last 156 years

but surely pittman is hoping the supreme court will take the opportunity presented by the almost inevitable appeal of this case to narrow federal authority dramatically

A friend of mine is a lawyer for DOJ and he indicated to me that lower courts do try to suss out where SCOTUS is going and rule accordingly. I don’t believe this ruling would have been made if recent SCOTUS rulings were different. I have not talked to him about this case and we don’t talk legal stuff much so he may have just been humoring me with my perception that lower courts try to suss out where the winds are blowing.

One can use precedents and case law to pretty much argue anything (within reason) since there are enough contradicting rulings over the last 200 years. In mathematical logic terminology the Constitution and legal precedents together do not form a consistent system. Thus a lot of this stuff comes down to what is in fashion today so to speak.

Judge Napolitano wrote an argument on why secession is a right of each state and wrote an argument for why this wasn’t specifically written in the Constitution. A lot of this stuff is just making shit up or selectively using precedents to justify a desired conclusion. One can do this in an inconsistent system.

yup

This is an interesting discussion. We have come to accept the government playing a large role in many activities. While I am not particularly interested in distilling my own vodka, I do have similar interests. And certainly one has to wonder at the role of commercial corporation in regulations. Cui bono.

Also, to my mind it is worth reading any court opinion that contains this line "... Congress did nothing more than statutorily ferment a crime"

if this decision stands, at best it means you'll have your state government playing a large role in many activities, unless you live in idaho or something

i'm not used to seeing typographical errors like 'it's progency', 'does not get rebuff causation', and 'and it despite providing (...), it' in federal court opinions. they also quote the same text from §5178 twice and say that a statute from 01868 ce is 'about 130 years old'. i bet pittman regrets not proofing his clerk's draft and maybe hiring that clerk

it's surprising that the permanent injunction was granted. that's a very hard-line stance

this seems very likely to end up in the supreme court. like lopez and morrison, it substantially narrows the authority conferred on congress by wickard and raich, and the government is virtually certain to appeal to the circuit court. if they do not, or if cert is denied or the circuit court affirms this judgment and it ends there, it seems guaranteed that other members of the association (or other homebrewers) will file suit in other circuits, either obtaining a circuit split, which would virtually guarantee that the supreme court grant cert, or an effective elimination of the law—and many others!

OMG, they're coming for Wickard v. Filburn.

Yup. I agree.

I don't understand, Wikipedia was still beyond me. Can you share more about what this would mean?

The constitutionality of most federal laws from the last 80 years will be brought into question.

Essentially, the constitution grants the federal government a limited set of powers. Anything outside of that scope cannot be regulated at the federal level.

Historically, most laws have been written under the authority granted to Congress to regulate interstate commerce, as Wickard v. Filburn ruled that that that authority was to be interperated very broadly.

In practice, if Filburn is overturned, it would probably he replaced with a still broad reading to avoid the absolute chaos that a complete reversal would cause.

Context: this is the infamous Supreme Court case that decided the federal government has the right to regulate a farmer growing wheat for his own consumption (and, by extension, pretty much anything else it wants to), because by not buying wheat on the market he's engaging in interstate commerce.

https://en.wikipedia.org/wiki/Wickard_v._Filburn

From a European perspective, looking at this case the framing seems a bit odd. Roscoe Filburn was a commercial dairy farmer. The Wikipedia article talk about private consumption, but how can consumption inside a commercial venture (feeding the cows) be private?

If a farmer here buys fuels for their tractor, that is taxed and filed under the commercial venture of the farm. If the same farmer buys fuel for a private car, it is private consumption and taxed differently. Setting aside tax fraud, there is a very clear line between private consumption and consumption as part of the commercial venture.

That wasn't the question. Question is if interstate commerce. If you grow a plant on your own land and sort of sell it to your own business maybe it's commerce, but only interstate by the most disingenuous stretch.

The EU equivalent would be EU constitution allowing restriction on internation commerce but then considering commerce entirely within France to be internation because hypothetically people in France might have otherwise bought from Germany.

We kind of have this kind of regulation in EU. A classic example is that commercial eggs must not be washed. This is made into an EU regulation and part of the reason for it is to enable and encourage free trade by having everyone using the same rules.

Free trade was one of the founding principles of the EU and shared regulations for food production are fairly often referenced when people discuss the pro and cons of EU membership. In some cases I have seen regulations relaxed in my own country in order to comply with the EU regulation, and at other times been made more strict, all for the goal of more trade between countries.

Commercial eggs, yes, but the EU does not try to stop you from washing eggs that you eat yourself. The court case discussed here did.

Private versus public is not the important part here; interstate versus intrastate is. The US federal government was designed (via the commerce clause in the US Constitution) to be unable to regulate commerce that occurs entirely within a state, which should be entirely a matter for that state. Taken to its limit, that would mean, for instance, that federal laws about controlled substances would not apply to products produced, sold, and consumed entirely within one state, so there'd be no more ambiguity about whether the federal government can go after producers or consumers of marijuana in a state that has legalized it.

In Wickard v Filburn, the court effectively decided the federal government could regulate commerce occurring entirely within one state, on the theory that intrastate transactions could reduce interstate demand. That's an incredibly expansive and arbitrary justification, and effectively removed all limitations from the commerce clause. Invalidating that ruling would be a massive reduction in the power of the federal government to limit people's rights within a state, and an expansion of the power of individual states to make more things legal. (Note that individual states can already in general make things illegal that the federal government permits, so the primary effect of invalidating Wickard v Filburn would be to make more activities legal, rather than illegal.)

There would be a lot of fallout, and potentially a need for more targeted follow-up cases to confirm the legality of specific federal regulation that previously just relied on Wickard v Filburn; the outcome would not be 100% positive. But on balance it seems like a net positive.

The reason I mentioned private vs commercial is that the Wikipedia article (and other articles on the subject) focused on this distinction. The wheat itself was not sold and thus not commercial. The wheat never entered commerce and was consumed privately. They also describe this as farmers doing non-commercial activity.

If we do ignore that aspect, the Federal vs state regulations is the interesting aspect Wickard v. Filburn.

That factor does make the ruling in that case even more egregious, yes. Even if the court only narrowly invalidated the premise of regulating private activity that'd be a net improvement, albeit a much smaller one.

Not only that, there's a fairly clear hint on page 4 that, given a suitable case, the court might have been willing to find against ATF regulations on the manufacture of prohibited firearms or accessories as well.

Would the rest of the drug laws be in question too?

> Would the rest of the drug laws be in question too?

All of the state laws are in the clear.

I don't actually know if the Federal drug laws are justified under the commerce clause.

They are, see Gonzales v. Raich.

https://en.wikipedia.org/wiki/Gonzales_v._Raich

I don't see why not. Gonzales v. Raich held that drug laws were permissible under the Commerce Clause (even in the absence of any legal commerce in those drugs - go figure), but I wouldn't put it past the court to overturn that.

Or, for that matter: where in the Constitution does it say that Congress has the power to regulate the manufacture and use of nuclear weapons?

(To be clear: I think this is an absurd line of reasoning.)

> Or, for that matter: where in the Constitution does it say that Congress has the power to regulate the manufacture and use of nuclear weapons?

Wickard v Filburn was "your transaction intrastate led you to buy less interstate so we can regulate you"; that is a ridiculous ruling. That doesn't mean there should be no narrower rulings to justify specific classes of regulation.

When Morton Downey Jr. was a thing Mad Magazine did a spoof on this. In the cartoon one of the characters said, “I’m opposed to a waiting period for purchases of tanks, missles, and attack helicopters to private citizens but I do favor a 10 day waiting period on sales of nuclear weapons.” Morton then cracks him upside the head and calls him a “candy-ass liberal”.

Privately made hand grenades are back on the menu boys

Only outside city limits.

The linked opinion makes a point of explaining how this case differs frim Wickard v Filburn.

For as crazy as the 5th circut and Supreme Court are, I don't see either of them being crazy enough to take on Wickard v Filburn.

> The linked opinion makes a point of explaining how this case differs frim Wickard v Filburn.

My take is that the district court has to show deference to Wickard... but that doesn't mean that the whole issue can't be teed up to become a challenge to Wickard on appeal.

> For as crazy as the 5th circur and Supreme Court are, I don't see either of them being crazy enough to take on Wickard v Filburn.

They're pretty gosh-darned crazy is all I'm saying here.

Not a decade to soon!

...if true, which I very much doubt.

If the case made it to the supreme court and Wickard v. Filburn was successfully overturned, that'd be a rare bit of positive news from court rulings.

(Further detail elsewhere in the thread: https://news.ycombinator.com/item?id=40950889 .)

Can you elaborate on your view on this? I won’t respond but I am curious what the perspective is on this point of view.

I edited in a link to a comment elsewhere in the thread explaining in more detail.

Once I read it, it didn't actually seem like it. Instead, it seems to be saying since booze regulation isn't intended to fully govern the market and production of booze under the commerce clause, enforcement can't include a prohibition as expansive as banning home distilling under the commerce clause (YMMV I think they're saying this is the case because most of the regulations are for collecting revenue, not for controlling how much booze is in commercial circulation). (With a separate rational for why it's not also included in the taxing enforcement power.)

I kind of take this to mean that home distilling would be allowed under a very invasive tax/inspection regime? As it seems like there's a strong implication that the other aspects of the taxation on spirits would still apply to home distillation.

I've always wanted to try distilling. I even looked into licensing. The ban on residential distilling made it impossible. It would be great if they had a hobby license that carried a smaller bond requirement too. Seems like this ruling will make permits accessible to individuals, but they're likely to keep all the other stipulations.

Nothing has been stopping you before. Lots of people make their own hooch.

Not legally.

This illustrates the huge problem with courts' interpretation of the Commerce Clause: it's used in some very useful ways to allow for some very useful regulation and lawmaking... but it's also used in some messed up ways, like this one. (Arguably this one is a fairly minor bad way.)

I'm not sure what the solution is. Throwing out the expansive interpretation of the Commerce Clause could be disastrous in the general sense, even if it ends up striking some laws that are clearly an abuse of federal power over the states.

But the real problem is the motivation: conservatives in the US seem to want to dismantle the federal government and turn over nearly every domestic concern to the states (except where they get to impose "conservative, Christian values" on the rest of the country, of course). I get why that can be an attractive proposition in some areas, but overall I think it would be disastrous. Many problems we face today (that we did not face in the late 1700s) more or less require a coordinated, national response, via legislation and regulation.

And on top of that, we can expect decisions based on ideology, and the future looks bad to me. Nationwide environmental protections set by the EPA? Nope, unconstitutional, interstate commerce doesn't cover that sort of thing. And things like California setting strict emission standards that end up being the standard? Nope, can't do that either, that's interference in interstate commerce.

Interstate compacts (same law across most/all states) were used before the bastardized version of interstate commerce. Can be used again.

I don't think that will help today. Many of these important issues will be agreed upon by around half the states, and vehemently opposed by the other half. Half the country in agreement is still not enough.

Then you can amend the constitution, or Congress can agree to let those states secede.

Sometime I think they seem to be angling for a system where states would have to sue each other to force controls on various things. Like Colorado getting acid rain caused by practices in Utah? Colorado sues Utah to force restrictions. It seems stupid.

It’s a district court in Texas, not the Supreme Court. Don’t get excited.

I double dare the government to eventually take this to the 5th circuit of appeals then

The state is about to get cooked

this seems almost certain to end up in the supreme court within 15 years

I don’t quite understand why this law must be a tax and they can’t claim some other power gives the authority to do that? I’m not arguing either way I just don’t quite understand.

Because the constitution gives the federal government a set of enumerated powers, and after the repeal of the Eighteenth Amendment, they have nothing else that applies.

The state could make it illegal if they wanted to. This is challenging the ability of the federal government to do so.

So I think the argument that is advanced for tax authority allowing such a restriction were the tax on the still and not on the output seemed a bit hard to parse, but the commerce clause not being applicable because there's no overall expansive restriction on the booze market intended by Congress seemed fair.

[dupe]

More discussion: https://news.ycombinator.com/item?id=40941292

so although most of the commentary and airtime is alarmist about how some regulations that maintain order will be struck

there are so many other regulations that really are rackets, are there any pet project cases anybody here is now excited to bring over the next generation of these courts?

How about not being able to collect rainwater in your backyard?

I don't think there are any federal laws about collecting rainwater, so this case wouldn't be relevant.

https://worldwaterreserve.com/is-it-illegal-to-collect-rainw...

> "Water laws are handled on the state level"

Could it be, that Chevron being overturned has positive outcomes for the common man? I’m shocked

Oh I'm sure it has some. The amount of laws that are just blatantly anti freedom is crazy.

On the other hand, Chevron has likely been a huge benefit in keeping our air and water from being exponentially worse. A huge corporation being able to dump toxic waste impacts everyone and violates the freedoms of far more people than the corporations they restrict.

States have their own EPA that is at least as strict as federal guidelines at least. You might be screwed over in a red state however.

Yep. Not everyone lives in California.

This has nothing to do with that. Chevron being overturned means "you have to pass laws not give vague instructions to the executive branch".

This is a federal court overturning a written law because it was overreaching.

It's of the same vein of intersecting with regulatory agency powers. A lot of people who's paycheck depend on both cases are real nervous right now, and making a lot of noise to save their dental plan. ATF comes to mind.

History books will write about the Roberts court in pretty much the same way that history writes about former Supreme Court Chief Justice Rober B. Taney [1], possibly most famous for the Dred Scott decision [2].

This decision is a just a district court decision but you will be seeing a ton of these over the coming years and the playbook will be exactly the same:

1. Challenge some government regulation in a conservative federal district court, probably the Fifth Circuit (Texas, Alabama, Louisiana). Judges in this circuit tend to be very conservative because of Blue Slip system [3]. Any nominee for Federal court by convention requires a sponsoring Senator and the Senators in these states are pretty much always Republicans. It's worse in Texas too because of the way the Fifth Circuit is organized into divisions it's really easy to judge shop;

2. SCOTUS just ended Chevron deference. That means for 40+ years, Congress would pass laws like "The EPA will ensure there's clean air and water" and the EPA would decide what that meant. The Chevron deference part is that courts deferred to Federal agencies whenever any legislative language is ambiguous. Thing is, Congress relied on this when writing legislation for 40+ years. It's also impossible to write legislation for every aspect of regulation. It's simply too much;

3. SCOTUS also ended the statute of limiations (previously 6 years) for challenging any federal regulation through the Corner Post decision [4]. This case got less attention but the impact is going to be massive. Previously when a Federal regulation was made you had 6 years from inception to challenge it. Now the 6 years applies from when the injury begins so you can challenge a 100 year old law by establishing an LLC and claiming injury;

4. A Fifth Circuit court will say the case is open and shut because the legislative language is ambiguous;

5. Other circuits, particularly the 9th Circuit, will interpret things differently. This essentially forces SCOTUS to act to resolve different circuits having different interpretation. This court in particular will rule against regulation.

We will see for years to come a torrent of cases that will dismantle every aspect of Federal regulation. What's crazy is some people who will absolutely be hurt by this will celebrate it. Arsenic and lead in your water will hurt you. Dumping waste into the Chesapeake Bay will hurt you. Polluting the air will hurt you. The only people this will benefit is the extremely rich who get to get slightly richer.

Roberts will be remembered for this, stripping voting rights, Dobbs, presidential immunity (which will be up there with Dred Scott) and, of course, Citizens United, which decided that money = speech.

[1]: https://en.wikipedia.org/wiki/Roger_B._Taney

[2]: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

[3]: https://en.wikipedia.org/wiki/Blue_slip_(U.S._Senate)

[4]: https://en.wikipedia.org/wiki/Corner_Post,_Inc._v._Board_of_...

If you are hurt by arsenic you can sue the person who harmed you. I’m glad we are entering an era of massive deregulation, to reverse the endless strangulation of American society by a bloated, metastatic, parasitic regulatory state that has (thus far) only grown and never shrank. You can hear the shrieks from DC as their cushy $160k make work jobs are going to end.

That really doesn't work, especially where harm is diffuse to the wider environment.

> If you are hurt by arsenic you can sue the person who harmed you.

You can try, but you'll probably be dead before your estate wins the case.

[0] https://en.wikipedia.org/wiki/Hinkley_groundwater_contaminat...

If we're leaning towards dominating our thoughts towards cases of people being deaded,the ATF has literally burned dozens of children alive to enforce alcohol/tobacco/firearms regulations. So that's not an argument in favor of the ATF regulating this.

I don't think the ability to engage in a class action lawsuit is much of a benefit when you have arsenic poisoning (as in your life is ruined and you got like $30k). Let's be real, the company and company leadership will face zero legal consequences and this psychotic behavior will become widespread with no real consequences.

That's extremely regressive. Lawsuits cost money. Better to not have arsenic exposure to begin with. We all need these regulations to prevent injury.

> If you are hurt by arsenic you can sue the person who harmed you

Oh, that is very reassuring!

It took 14 years before Exxon paid any money for the Exxon Valdez disaster. Suing is largely now for the rich. Things can be delayed so long that the people only get a pittance when factoring in inflation and opportunity costs.

> also impossible to write legislation for every aspect of regulation. It's simply too much

Ha. Perhaps there's a hint in there somewhere, but I assume it won't be taken. ;)

I agree that lead in water hurts us though. Good thing nobody has to worry about that thanks to our massive Federal bureaucracy.

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