The U.S. Supreme Court's 2026–2027 term just got a whole lot boozier.
asserted
term → get → ?
On Monday, the justices agreed to hear arguments later this year or next in the case of Department of Justice v. McNutt.
asserted
justices → agree → McNutt
At issue is whether the 1868 federal ban on distilling liquor at home is unconstitutional because it exceeds the lawful regulatory power of the federal government.
asserted
it → distil → government
If any modern Supreme Court case ever deserved its own drinking game, this one is it.
asserted
one → deserve → game
You’re reading Injustice System from Damon Root and Reason.
asserted
You → read → Root
In April, the U.S. Court of Appeals for the 5th Circuit found the federal ban on home distilling to be unconstitutional because Congress lacked the proper authority to issue such a ban in the first place.
asserted
Congress → find → place
It was not a legitimate exercise of the congressional authority "To Lay and collect Taxes," the appellate court reasoned, because "the purpose of a tax is to raise revenue for the government;" yet this law "amount[s] to an anti-revenue provision" that only "prevents distilled spirits from coming into existence."
asserted
that → lay → existence
And if it does not exist, of course, the government cannot tax it.
asserted
government → exist → it
The 5th Circuit also denied that the federal ban on home distilling could be saved by the government's appeal to the Necessary and Proper Clause, which says that Congress has the authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
uncertain
which → deny → Department
But the federal ban on home distilling cannot be "necessary" to the execution of the enumerated taxing power, the 5th Circuit argued, because the provisions of federal law at issue "tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law."
Nor did the 5th Circuit find the ban to be "proper."
asserted
ban → tax → law
"By purporting to ban activity without a plain connection to the exercise of Congress's taxation power," it held, "Congress has essentially—and 'improperly'—invaded the reserved police and regulatory power of the states.
asserted
Congress → purport → states
The Trump administration lost this case at the 5th Circuit and has now successfully urged the justices to hear its appeal.
asserted
administration → lose → appeal
In its petition seeking review, the Trump administration faulted the 5th Circuit for its overeagerness to "second-guess" the "legislative judgment" of Congress.
asserted
administration → seek → Congress
Instead, the Trump administration argued, the federal judiciary owes a great deal more deference to the federal government's regulatory priorities in a case like this.
asserted
judiciary → argue → this
"A law is necessary and proper if it is 'convenient' or 'useful' for carrying an enumerated power into effect, and 'plainly adapted' to that legitimate end," the Justice Department's brief argued.
asserted
brief → carry → end
This case may lead to an interesting divide among the Supreme Court's more conservative members.
uncertain
case → lead → members
In United States v. Comstock (2010), a 7–2 Supreme Court embraced the Necessary and Proper Clause as sufficient constitutional grounding for the Adam Walsh Child Protection and Safety Act, which had empowered federal officials to order the indefinite civil commitment of "sexually dangerous" individuals who had already finished serving their prison sentences.
asserted
who → embrace → sentences
Chief Justice John Roberts joined the majority opinion in that case, while Justice Samuel Alito voted in concurrence.
asserted
Alito → join → concurrence
In other words, they both endorsed a broad view of congressional power under the Necessary and Proper Clause.
asserted
they → endorse → Clause
By contrast, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, voted in dissent.
asserted
Thomas → join → dissent
The Comstock ruling, Thomas protested, "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'
asserted
we → protest → that
"
Are we about to see a similar Alito-Thomas split over the proper reach of federal power in this case?
asserted
we → see → case
Will one or more of them play the Scalia part and similarly reject the Trump administration's broad reading of the Necessary and Proper Clause?
asserted
one → play → Clause
The Aporia
