From the lawyerly crew at the Volokh Conspiracy (hosted at Reason mag.) April 11:
The ruling holds the law exceeds Congress' authority under the tax power and the Necessary and Proper Clause. But it does not consider the Commerce Clause.
Yesterday, in McNutt v. US Department of Justice, the US Court of Appeals for the Fifth Circuit struck down an 1868 federal law banning home alcohol distilleries. The court ruled that the law exceeded Congress' authority under the taxing power, and also under the Necessary and Proper Clause. It's an important win for constitutional federalism - as well as for home alcohol distillers! But it's significance is limited by the fact that the court did not consider the possibility that the law is authorized by Congress' power to regulate interstate commerce.
The decision was written by prominent conservative Judge Edith Jones. But the unanimous ruling was joined by liberal Obama appointee Judge James Graves. It's an impressive, and somewhat unusual, cross-ideological agreement on the type of federalism issue that often splits jurists along ideological lines.
Judge Jones is, I think, undeniably right to argue that the tax power cannot justify this law:
[T]he power to "lay and collect Taxes" means Congress can charge or demand money from taxpayers. It is also obvious that the purpose of a tax is to raise revenue for the
government. Indeed, "the essential feature of any tax" is that "[i]t producesat least some revenue for the Government."NFIB v. Sebelius, 567 U.S. 519, 564 (2012)… (emphasis added)….Section 5178(a)(1)(B) and Section 5601(a)(6) exceed these constitutional limits. Primarily, neither provision raises revenue. Not only do they prohibit at-home distilleries, but in so doing, they amount to an anti-revenue provision that prevents distilled spirits from coming into existence. Cf. 26 U.S.C. § 5001(b) (taxation begins "as soon as [the spirit] is in existence"). The provisions operate to reduce revenue instead of raising it. This violates the Supreme Court's explanation of how the federal power of taxation works: "[I]mposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice." NFIB, 567 U.S. at 574, 132 S. Ct. at 2600 (emphasis added). These plaintiffs have only the choice not to do as they wish or risk fines and imprisonment.
Exactly so....
....MUCH MORE
