In a decision that allows Americans to reflect both on the fact that taxation is not just extortion and theft, but that it also breaches the Fourth Amendment’s promise of privacy against searches without warrants, Judge Mark Pittman, of the U.S. District Court for the Northwest District of Texas, July 10 issued an injunction against enforcement of a federal tax statute that has effectively banned the making of home-distilled moonshine for the last 156 years.
Entitled “Hobby Distillers Association, et al. v. Alcohol and Tobacco Tax and Trade Bureau, et al.” the case revolved around four of the Hobby Distiller’s 1,300 members who filed suit in December against the Alcohol and Tobacco Tax and Trade Bureau and the Department of Justice, arguing that the government's “regulation-through-the-tax-code” reach could not extend to activities within a person's home.
The ban is a consequence of “legal lines” within the 156-year-old tax on home-distilled spirits that allows the Alcohol and Tobacco Tax thugs to claim jurisdiction over what kinds of home set-ups people make, and, of course, claim the power to “inspect” and prevent any such distillery from starting – even if it is for home use.
In other words, the tax agency is allowed to breach the Fourth Amendment and shut down anyone, even though those people are not selling the liquid they distill, meaning there wouldn’t be any sale to tax in the first place.
Wrestle with that head-scratcher.
It turns out that Judge Pittman wrestled with the illogic and the anti-rights aspects of the old statute, and he, too, found big problems with it. Certainly, he did not go all the way to recognizing the immorality of taxation on the basic, abstract level, but he made many key constitutional and logical points.
As Fox News’ Landon Mion notes, the judge focused on one plaintiff, a New Jersey man named Scott McNutt (he, also, is a member of the Texas-based Hobby Distiller’s Association) who, get this, got a letter from the government goons telling him they suspected he had purchased materials that might allow him to make his own booze!
“McNutt received an unsolicited letter from the Alcohol and Tobacco Tax and Trade Bureau that said he faced potential civil and criminal liability after it learned he may have purchased materials that could be used to distill spirits.
The Department of Justice claims the ban was a valid measure created by Congress to protect the substantial revenue the government raises from taxing distilled spirits by limiting where plants could be located.”
To his discredit, Judge Pittman did not address the clear violation of the Fourth Amendment that represents. But he did range into constitutional ground when it comes to this federal taxation agency claiming an a-priori power to block the creation of a home-distillery, and how the Interstate Commerce Clause of the Constitution (Article One, Section Eight) was not designed to allow for this kind of deep interference in private activity.
Writes Mion:
“Pittman, however, said the ban was not a valid practice of Congress' taxing power because it did not raise revenue and ‘did nothing more than statutorily ferment a crime.’"
I think we understand the pun…
"’While prohibiting the possession of an at-home still meant to distill beverage alcohol might be convenient to protect tax revenue on spirits, it is not a sufficiently clear corollary to the positive power of laying and collecting taxes,’ the judge wrote.”
In other words, the taxing agency cannot claim the power to block the creation of one’s own distillery, for one’s own use and not for sale, simply because the government argues that the making of one’s own booze might cut into the sales of the alcohol in stores that it officially taxes.
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And Mion also notes two critical aspects of Judge Pittman’s injunction. Pittman determined that this had nothing to do with “interstate commerce” and that, as we have seen with the Supreme Court’s recent clampdown on the so-called “Chevron Standard” of deference to “regulatory agencies” creating their own new powers, any attempt to claim this claim of control over home moonshine is “regulatory” is an unauthorized expansion, similar to the defunct Chevron foolishness.
“The judge said the ban on at-home distilling could also not be covered under Congress' power to regulate interstate commerce. He said the ban is ‘not a comprehensive’ scheme of regulation because there are many aspects of the alcohol industry that Congress has left untouched."
One of the key provisions of Judge Pittman’s decision appears on page 13, where he states this about the federal taxation-and-approval-to-operate provision of the old U.S. statute:
“Subsection (a)(1)(a) requires the applicant for a distilling permit to truthfully describe the proposed premises for the operation; and it allows the secretary to ‘prescribe such regulations [on the] location, construction, arrangement, and protection of [the premises] as he deems necessary to facilitate inspection and afford adequate security to the revenue.’ § 5178(a)(1)(A) (emphasis added). And subsection (a)(1)(C) allows the secretary to retroactively approve any existing plant that predates the statute “if he deems that such location, construction, arrangement, and method of operation will afford adequate security to the revenue.” § 5178(a)(1)(C) (emphasis added).”
As Katelynn Richardson notes for the Daily Caller:
“President Jimmy Carter signed a law that legalized homebrewing in 1978, but distilling spirits at home remained illegal.”
And it remained illegal because the Alcohol and Tobacco Tax and Trade Bureau claimed the power to allow or not allow people to make their own spirits. Not only that, as we can see in McNutt’s case, they claimed the power to breach privacy even on the level of store purchases for anything that could be associated with home-distilling.
Judge Pittman has put a fourteen-day delay on his injunction against the continued enforcement of this old statute, a delay to allow the feds to bring an appear to the federal appeals court level. But his ruling, though it does not go deep enough into the immorality of government taxation or claims of so-called “regulation,” does show promise for other hobbyists, including people who use 3-D printers and those who make their own drones for recreation.
It should not be up to agents of the state to tell anyone what they can trade on a market level, but, at least on this personal-use level, Judge Pittman’s ruling cracks a long-standing stone that has blocked personal freedom.
One can only hope to see that crack widen.
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