Litigation Update: Ream v. U.S. Department of Treasury - Is Home-Distilling Commerce?

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Chayila Kleist:  Hello, and welcome to this FedSoc Forum webinar call. Today, April 23, 2024, we’re delighted to host a “Litigation Update” on Ream v. The United States Department of Treasury, which poses the question, “Is home-distilling commerce?”

 

      My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues.

 

      Now, in the interest of time, we’ll keep our introduction of our guests today brief, but if you’d like to know more about either of our speakers, you can access their impressive full bios at fedsoc.org.

 

      Today, we’re fortunate to have with us, as our moderator, Andrew Grossman, who is a partner at BakerHostetler, LLP. Mr. Grossman also serves as a Senior Legal Fellow at the Buckeye Institute and an Adjunct Scholar at the Cato Institute. He has been a frequent legal commentator on radio and television, having appeared on Fox News, CNN, MSNBC, CNBC, NPR and its affiliates, CBN, and elsewhere. His legal commentary has also appeared in dozens of magazines and newspapers, including the Wall Street Journal, USA Today, the Washington Post, the Washington Times, and many others. Mr. Grossman has testified before the House and Senate Judiciary Committees and frequently advises members of Congress on complex legal and public policy issues. I’m going to leave it to him to introduce our other guest.

 

      A last note, and then I’ll get off your screens. If you have questions throughout the program, please submit them via the question-and-answer feature so they’ll be accessible when we get to that portion of today’s webinar. With that, thank you all for joining us today. Mr. Grossman, the floor is yours.

 

Andrew Grossman:  Thank you so much. Thank you to The Federalist Society for hosting this program, and thank you to all of those attending. I’m pleased this afternoon to introduce Robert Alt. Robert Alt will be discussing the case Ream v. United States Department of The Treasury. Robert is the President of the Buckeye Institute, an Ohio-based think tank with a national footprint that is active in legal and economic affairs and public policy issues across the country.

 

      Prior to joining the Buckeye Institute, Robert was a Director in the Heritage Foundation’s Center for Legal and Judicial Studies, serving under former U.S. Attorney General Ed Meese. Robert speaks frequently across the country. Many of you have probably heard or read his remarks regarding legal issues and, particularly, federalism issues, and so it’s an area in which he has a great and deep expertise. And so, that’s why I’m so pleased to be speaking with him today. I should say at the outset that I am Robert’s co-counsel on the case that we’ll be discussing today but was also asked to serve as moderator for this program. So I’ll be in the unusual-for-me position of being the one asking questions, as opposed to being the one struggling to answer them. So with that, thank you, Robert, for joining us today.

 

Robert Alt:  Thank you so much for having me on and always an honor being interviewed by co-counsel.

 

Andrew Grossman:  So to begin with, why don’t you tell us a little bit about what this case is about. I understand it’s been filed recently, it’s gotten a little bit of media attention, and it’s gotten a lot of attention for the arguments that it makes regarding governmental power. And then also, I think, the subject matter is very interesting, too. So what is this really all about?

 

Robert Alt:  Well, I think this case boils down to three of my favorite things: whiskey, freedom, and Ohio. And as we talk about it today, you’ll see how those themes repeat throughout it. Whiskey, this goes to the question of whether or not it’s permissible to distill whiskey at home for your own personal consumption—the freedom to do so. And Ohio—as I’ll explain here in a couple of ways -- Ohio features not just as the situs of our plaintiff in the case but also the site of one of the major precedents in Supreme Court history, with regard to governmental authority, and also the birthplace of prohibition. So Ohio actually features prominently throughout the story of this case.

 

      But let me take a step back and tell you a little bit about our plaintiff, if I can, John Ream. John is -- his background is actually as an aerospace engineer, and so he has a very precise mind when it comes to developing processes and the like. And so, a number of years ago. his then fiancé, now wife, bought him a home-brewing kit. And he began experimenting with this, as many people do, in his garage, and he became quite adept at it. And people—his wife and others—commented how good the beer was that he developed. It was very -- he was able to create -- again, applying that engineering mind to it, he was able to create very subtle beers. And so, at some point along the way, he decided to make the entrepreneurial move. He hung out his own shingle. He started Trek Brewing company here in Newark, Ohio, and began his own craft brewery, where he makes some very fine beer.

 

      Now, much in the way that he engaged previously in the hobby of brewing, he would be interested in trying his hand at distilling. He has an interest in American whiskeys—bourbon and rye in particular—and given his very precise nature, he would like to try his hand at home distillation for his and his wife’s own personal consumption—not for sale. There’s just one problem, and that is if you want to go home tonight and try your hand at home brewing—post reforms that were made, oddly enough, in the Carter administration—perfectly lawful to do so. If you want to go home tonight and engage in making homemade wine—I would highly advise against it on the grounds of taste but—you are permitted to do so. If you go home tonight and distill even a single ounce of whiskey, it is a felony. Even if you jump through regulatory hurdles to become a distiller, home distilling is prohibited, subject to substantial prison terms and fines.

 

      And so, quite frankly, Mr. Ream’s desire to try this as a hobby for his own personal consumption was snuffed out before he would even have the opportunity to do so. Yet, there are many other people, it should be pointed out, who end up running afoul of this statute or, I should say, may not even recognize that they’re breaking the law. I’m guessing that there are people on this call who may have, at some point or another, tried their hand at home distilling or have a relative—it always seems to be an uncle or a cousin—who makes their own homemade distillation, but even de minimis amounts is prohibited under federal law.

 

Andrew Grossman:  Well, that’s very interesting. So there’s this prohibition on home distilling, but people can distill in other places, just not in the home. But then, in the home, they can undertake home brewing, as you said, home winemaking, as ill-advised as that might be. What is the government trying to achieve by singling out home distilling? Is it some kind of a -- is it a health or safety measure? What’s the point of this?

 

Robert Alt:  There’s no indication that this is a health and safety regulation. And indeed, one of the things I would argue, insofar as this is a federal statute, health and safety regulations are traditionally the province of state governments. States have plenary police powers with regard to regulating health, safety, and, historically, morals. But even to the extent that the federal government could have a putative interest, they haven’t stated an interest in that. To the extent that that were a concern, the states are more than capable of regulating in this space for health and safety, and indeed, many do. Many have their own rigorous regulations, and post the Twenty-First Amendment, states were particularly given, I think, pretty wide latitude with regard to how it is they regulated the sale of alcoholic beverages within their states. But that doesn’t seem to be what’s at issue.

 

      If you take a look back when this statute arose in federal law, it seems to have been motivated, probably -- it kind of arose on the road from the temperance movement to the prohibition movement—perhaps an early example of federal prohibition. Thus, going back to my statement, it’s oddly -- I’m coming to you today from Columbus, Ohio. The suburb of Columbus is Westerville, Ohio, which has a plaque in the town square announcing that this was the birthplace of prohibition—Westerville. It’s always pleasant to have -- across the street, there’s a place where you can get a nice alcoholic beverage and look out at the plaque. But indeed -- so it seems to have been motivated, in some sense, by that. Far from health and safety, it's part of the tax code, but it’s not a tax. Well, I’m sure we’ll get into that a bit later. But the idea that this is either for the purpose of health and safety or necessary, in some sense, to maintain health and safety just is not borne out.

 

Andrew Grossman:  What struck me about this particular prohibition is that it seems a little bit unusual. When you think about the federal government’s powers, it’s really -- it’s very difficult to come up with instances where the government is regulating non-commercial activity that takes place in a person's home. And, as you said, that sort of thing has always really been the province of the states. The only one I can think of is the one that was at issue a little bit more than a decade ago—oh, gosh, I guess it was actually two decades ago, at this point—in the Supreme Court in Raich, and that was, of course, the prohibition regarding marijuana. But is it your sense -- are there other -- are there a lot of other laws like this where the federal government claims some type of constitutional authority to reach into the home and to deal with activities that -- non-commercial activities taking place in the home?

 

Robert Alt:  Well, let’s take a step back. I mean, obviously, you’ve got -- you have the Raich case, but I do think it’s worth taking a look at the development of the Commerce Clause because you began with the question about non-commercial activity, and this really -- I think to understand this at all, you need to understand the development of the Commerce Clause. Of course, Article I, Section 8 of the Constitution grants to Congress the authority to regulate commerce between the states as well as between the United States and foreign nations. And, of course, the purpose here was to facilitate commerce between the states. It was not meant, at least as -- under the original language to be a broad font of regulatory authority in the nature of police powers.

 

      The early debates, with regard to the scope of the Commerce Clause tended to raise questions about whether or not the authority under the Commerce Clause included merely the ability to regulate the transportation of goods across state lines or the potential prohibitions or regulations thereon, or whether or not it went to regulations with regard to manufacture, production, agriculture—things in the -- on the production side of things. And so, these tended to be the nature of the Court’s debates until the New Deal, and there we have the case of Wickard against Filburn. And again, Ohio jumps prominently into our storyline.

 

      Roscoe Filburn was a farmer just outside of Dayton, Ohio. He grew a number of crops, including winter wheat. And under the Agricultural Adjustment Act, passed during the Great Depression, the government capped the amount of wheat or crops that farmers could grow—put maximum quotas on how much could be grown. Farmer Filburn exceeded his cap by several acres and was assessed a substantial fine by the Secretary of the Department of Agriculture.

 

      Filburn went ahead and appealed his case all the way up to the U.S. Supreme Court, and his argument, fundamentally, was this: “Look, the excess wheat that I grew never entered into interstate commerce. Indeed, it never entered into commerce at all. It stayed on my farm. I used the so-called excess wheat to feed my farm animals and to feed my family,” to which, just loosely speaking here, the Court said, “All that may be true, but”—applying something akin to the Kantian categorical imperative of constitutional law—“if everyone did this”—if we went ahead and applied a theory of aggregation to the underlying commodity, and because it is a commercial commodity—“that could impact the overall market for wheat if, in fact, everyone who was a farmer grew and used this.” Otherwise, he might have to grow less wheat and sell less wheat because he would have to keep some for himself, or he might have to buy wheat on the open market, but that this could somehow impact the price.

 

      But once you had this aggregation theory, with regard to -- with regard to the Commerce Clause, applying it under a substantially effects doctrine, using the necessary and proper clause, as well, it was kind of “Katy, bar the door.” The question really became what Congress couldn’t do with regard to regulating local activity. Things that looked to be entirely local—or homegrown in the case of farmer Filburn’s wheat—somehow became nationally regulable in nature, so much so that I think, for many years, it became almost the applied doctrine that there was no limit under the Commerce Clause to what it is that Congress could regulate.

 

      And you began to see some rolling back of this back in the 90s with the Lopez case. The Lopez case, of course, was the Gun-Free School Zones Act. And there, Angel Lopez who -- the interesting fact in this case is that Angel Lopez had actually transported a gun across state lines for the purposes of selling it—that’s an often-disputed error, not recognized feature of the case—notwithstanding that he actually brought a facial challenge to the Gun-free School Zones Act, saying, “Look. Carrying a gun in a school zone may be many things, but it’s not commerce. You’re not engaging in a commercial activity by virtue of carrying a gun in a school zone, and so that is not regulable by Congress.” 

 

      The government attempted to use a very attenuated chain of causation approach in terms of defending it, suggesting that, in fact, carrying a gun in a school zone—kind of taking aggregation on an attenuated basis to the Nth degree -- carrying guns in school zones increases violence in school zones, decreases scores by the students in those school zones, those schools perform poorly, then the states perform poorly, then the next thing you know, the communists win, essentially. And so, the Supreme Court under Rehnquist, essentially said, “Look. This was too attenuated to chain of causation, and this was not commercial activity,” and found that there were some outer boundaries with regard to Commerce Clause authority.

 

      This trend continued in the Morrison case, in which the Court struck down the tort claim provision of the Violence Against Women Act, again, looking at the fact that these potential tort claims may be many things, but they didn’t constitute -- the acts involved did not involve commercial activity regulable by Congress. And I do think, in both of those cases, you see a common thread, which is to say, in many cases, the federal criminal provisions do tend to rely upon the Commerce Clause with regard to regulating activity, even in the absence of any particular commercial transaction occurring.

 

      And so, this trend continued until Raich. And Raich, of course, involved the production and possession of a Schedule I controlled substance—in this case, marijuana, as was permitted under California law—and the question was whether or not that was regulable under the Interstate Commerce Clause. The Court, in that case, essentially applied Wickard to a black market, but I think there are some particular key distinctions at issue between Raich and what we’re talking about here. In Raich, the regulation of marijuana was part of the Controlled Substances Act. And there, Congress had promulgated a comprehensive system of regulation that covered both production and distribution and all phases in between with a singular desired effect, which was to eradicate the trade in certain controlled substances, including marijuana.

 

      In this case, with regard to distilling, you have nothing of the sort. You have what is, in fact, a legal substance that Congress has not sought to eradicate the trade in, where you have this vestige of a prior era in which they have an existing flat prohibition on home distillation under penalty of felony conviction.

 

Andrew Grossman:  I’ve often wondered if Congress has the power under the Commerce Clause to regulate something like home distilling because that might affect national -- under the aggregation doctrine and because there might be a national trade in alcohol, why couldn’t it regulate, say -- require the licensure of frying pans because, of course, there’s a national trade in food and combustibles, and so forth, or ovens or practically anything that one has in the house? I mean, even beds. Beds could be subject to federal licensure because when you sleep at home, you’re not giving money to a hotel.

 

Robert Alt:  One of the problems, I think is under the aggregation theory, there’s nary an activity that couldn’t be aggregated in some way where you couldn’t find some economic effect. If I go home and tinker with my car—because that’s my hobby—in the driveway, presumably, I’m depriving the auto mechanic or the dealer of the economic benefits that they would have if I took it in to be repaired by them. As luck would have it, the local garage is perfectly safe, in my case. They’ll continue to get my money. But there are any number of hobbies that people do, including -- looking at Wickard, if you have a home garden where you grow organic heirloom tomatoes, presumably, again, those are heirloom tomatoes that you are not buying on the market. And so, there is hardly an activity that you could at where—I don’t think -- where there’s any reasonable limiting principal under aggregation that would prohibit federal regulation.

 

Andrew Grossman:  And, I guess, that leads to the question: after Raich, it just seems like we’re back in that period prior to the federalism revolution. I think people forget the heady days of the 1990s, following Lopez, where it really seemed like just about anything was possible. In the lower courts and the appeals courts, you had cases considering, say, the viability under the Commerce Clause of the Endangered Species Act, of the Hobbs Act, which is a federal criminal statute, regulating -- prescribing certain types of extortion. There was just case after case after case where the courts questioned that—in some cases, ruled against -- all manner of exertions of federal power, and started on -- it seemed like that the Court, the Supreme Court, had kind of laid the groundwork towards a gradual reassessment of federal power and reassessment of the role of the federal government vis-ˋa-vis the states and vis-ˋa-vis the people. And Raich kind of strangled the federalism revolution in its grip. So what is left of that after Raich?

 

Robert Alt:  Well, it’s interesting. One of the things I think that’s worth remembering is the Court did not abandon the doctrine post-Raich entirely, and I would point particularly to NFIB v. Sebelius. And there, it may seem cool comfort, given the ultimate outcome of the case, upholding the individual mandate with regard to insurance based upon an alternative theory under the taxing power, but I think it is worth remembering -- at the time—just taking a stroll down memory lane—I actually did a number of debates for The Federalist Society at law schools across the country on whether or not the individual mandate was permissible under the Commerce Clause. And almost to a [inaudible 24:17], constitutional law professors across the country just considered it to be a foregone conclusion that, well, of course, it was within the authority to force an individual who was not in the market for insurance to purchase a product, that that was clearly within the authority under the Commerce Clause. And the Supreme Court did, in fact, reject that argument.

 

      So notwithstanding the fact that Raich was a step backwards, it was not the last word on this particular topic. And I think that there is something a bit sui generis about it because of the comprehensive nature of the regulation, the regulatory scheme of the Controlled Substances Act, and what Justice Scalia particularly pointed to—the intention of Congress to forbid or eradicate the trade in those particular substances—I think, creates a different valence than when you’re looking at regulation of localized, non-commercial activities of products that would otherwise be lawful and, indeed, have been deemed by Congress to be lawful in other contexts.

 

      So, in that sense, I think that there is an opportunity to pick up the cudgel of the federalism revolution of the 90s yet again. And I think that this particular statute—really going to your question of what can’t be regulated -- this, I think, really is a fine example. I mean, here is something where there really is not a strong justification at law or policy for the regulation in question. There are adequate alternatives. If you have concerns about this, the states are fully capable of regulating under a proper federalism regime, and indeed they do. And Congress seems to have precious little authority to regulate this non-commercial, localized activity—or, certainly, they should.

 

Andrew Grossman:  Well, I’m glad you brought up NFIB v. Sebelius, and I do intend to ask you about the taxing power. But before we turn to that, I just wanted to follow the thread regarding the Commerce Clause power. Let’s say that you’re right. Let’s say that you prevail in this case, and that would necessarily mean that a court determines that the Commerce Clause power doesn’t support this prohibition on home distilling—it’s simply beyond the federal government’s power to reach under that authority. What does that mean? What are the implications of that?

 

Robert Alt:  Well, I think there are a couple of potential outcomes, doctrinally as well as practically. On the one hand, as we’ve discussed, I think if you look at the foundations of the modern administrative and regulatory state, this is one -- the Commerce Clause is one of the central justifications for that, and so this would really address that. Although, in some sense, a favorable decision would likely call into question a relatively small number of federal laws that represent some of the more aggressive applications of the Commerce Clause power. But I think, really, probably given what we’ve been talking about, given what we talked about in the ’90s when it seemed that anything is possible, I think, probably, one of the key outcomes that you could see is a rekindling and rejuvenation of what we have deemed here the federalism revolution or a more critical analysis of federal and/or congressional authority under the Commerce Clause.

 

Andrew Grossman:  So with that said, why isn’t this -- let me just -- it’s the joke that everybody had in the wake of NFIB v. Sebelius. Why isn’t this prohibition a tax? Maybe that’s an unfair way of putting it, but maybe the better question—or, at least, the more accurate question—is, “Why isn’t this an exertion of the taxing power?” After all, it’s in the tax code. There is a tax on the distillation of -- on distilled spirits. And so, it would seem like this prohibition -- it’s part of that. It's tied up with that.

 

Robert Alt:  It is in the tax code, but simply being in the tax code doesn’t make something a tax, nor does it suggest or guarantee that it would be permissible under the taxing power. And interestingly enough, it’s almost the opposite of a tax, in this case. By prohibiting individuals from engaging in home distillation, you’re actually prohibiting conduct that might otherwise be a taxable activity. So you’re, in fact -- rather than -- this isn’t the sort of situation as in NFIB where if you fail to take a particular activity, we’re going to subject you to a penalty, which we’re now going to deem a tax. In this particular case, if you, in fact, engaged in the activity, you arguably might be engaging in taxable activity, but that, in fact, would be -- is what is prohibited and would subject you to a potential felony prosecution. So we’re actually -- we are actually prohibiting you from engaging in taxable activity.

 

Andrew Grossman:  And what about the people -- I’ve heard of people—and I understand Mr. Ream is not one of them -- but I’ve heard of people who do actually engage in home distilling. It’s illegal. It’s a felony. Federal law says you can’t do it, but they do it anyway. I assume, what, they just don’t report that?

 

Robert Alt:  I would think that that is a fair assumption. And, well, as I said earlier, there are, I think—interestingly enough, as we’ve brought this case, you do—in reading the literature and just having conversations -- you do realize, in addition to the made-for-reality-TV moonshining stories -- you do hear stories of individuals who do engage in some form of distillation who simply don’t know. So some of the non-reporting might arise from individuals who are simply unaware of the fact that even de minimis, home distillation for personal consumption, not for sale, is, in fact, prohibited activity.

 

Andrew Grossman:  So, having gone through the issues, let me ask you, where does the case stand now, and what’s the outlook going forward?

 

Robert Alt:  So we filed the lawsuit here in the Southern District of Ohio—a complaint against the Treasury—relatively recently—I believe the end of January. The government just filed their motion to dismiss—the Justice Department on behalf of the Treasury. And there, the arguments that they made were precisely the sorts of arguments that you would expect. We will then be filing a response here, and the case will proceed.

 

      In terms of what’s next, this is a case, I think, where, quite frankly -- I think everyone would anticipate, in this case, that the district court will not be the last stop. I think it is fair to say. I think whichever side prevails will certainly appeal to the Sixth Circuit, and I think it’s highly likely that whoever prevails there, the opposing party will go ahead and file an appeal from there. So stay tuned because I think that there will be much more to come.

 

Andrew Grossman:  Well, with all that said, let me ask what is my last question before we turn to viewer questions. And I should say to viewers, there is a Q&A function where you can input written questions. If you have written questions, please put them in, and we will get to them in just a moment. There are already several in the queue. But before we turn to viewer questions, I wanted to ask something that I think is very pertinent. What is your tipple?

 

Robert Alt:  That is a fine question. So I have an old friend who chided me endlessly because he was a drinker of bourbon, and he did so because this was American whiskey, and he disagreed with my choice in scotch. So I am much more -- in terms of whisky, I am much more of a scotch drinker. We can get more specific. My taste tends towards Islay, in terms of the region—the island there—and I’m a particular fan of Bruichladdich scotches. And we can drill down even more from there, but I tend to like the heavily peated scotch. But I feel like inquiring minds want to know. Mr. Grossman, what’s your tipple?

 

Andrew Grossman:  Practically any distillation from Buffalo Trace. It will go down pretty easy in my book. So with that vital question answered, why don’t we turn to some of the viewer questions? The first is, “What does Ohio law have to say about home distilling?” And maybe let me broaden that a little bit. I get the sense that probably different states take a different approach -- different approaches. Is that right?

 

Robert Alt:  Absolutely. There are some states that do prohibit home distilling. Ohio is not one of those. Ohio does not prohibit home distilling, and, in fact, there is pending legislation which would make it clear that home distilling is lawful and set down more specific language with regard to that. But there is no standing prohibition with regard to home distilling under Ohio law.

 

Andrew Grossman:  And the different states -- I guess the issue that we’re talking -- that you’ve been talking about, with respect to the federal prohibition on home distilling, that doesn’t really apply to the states, does it?

 

Robert Alt:  The issue—certainly in terms of the Commerce Clause authority -- obviously not. As we discussed, traditionally, states have plenary police powers. They have greater authority with regard to regulating health, safety, morals. In addition, under the Twenty-First Amendment, they have broader regulatory authority with regard to alcohol regulations. So they are not, generally speaking, governments of limited enumerated powers under the Constitution. Rather, they have the reserve police powers, and so they would have the -- the states would have authority to engage in the kinds of regulations that we’re talking about.

 

Andrew Grossman:  Thank you. So another viewer question. This is by -- from an anonymous attendee, whom I assume probably has a still in his living room. He asks—or she asks, perhaps—“How often are home distillers charged with a felony?”

 

Robert Alt:  Well, I hazard to say precisely, but it -- in looking -- in doing background of bringing the case, it certainly does happen. We have seen prosecutions with regard to even having certain of the still materials. We’ve seen prosecutions related to that. And certainly, when you tend to see it more, obviously, is when someone has done something to stick their head out, which is to say they engage in some sort of home distilling and sell the product and thereby raise the attention of the regulatory authorities. But it still is very much a prosecuted offense.

 

Andrew Grossman:   And my recollection is that the Treasury Department has issued public guidance, stating that this is unlawful, that it’s subject to criminal penalties, and, yes, they will come after you. Is that right?

 

Robert Alt:  Yes. And that guidance was specifically—if I recall correctly, as well—related to the home distilling, lest there be any -- much, I think, for the reasons that we talked about. I think that there are those who don’t -- this is not -- to go back to—for those of you who can remember—your law school days in the early days of criminal law, if you want to talk about your malum prohibitum and malum in se offenses, this is definitely in the category of malum prohibitum. This is not something that people would generally intuit is a legal violation and so, by virtue of that, I think it’s more likely that you would have individuals who could inadvertently end up violating the law without realizing it or not realize the full scope of it. So, in this case, Treasury attempted to make it perfectly clear in this guidance that, yes, indeed, this criminal offense would apply to home distillers, even for personal consumption.

 

Andrew Grossman:  All right. We have another viewer question. And this is an interesting one. It’s a little bit off the beaten path. The viewer observes that the Civil Rights Act of 1964 was upheld in heart -- in the heart of -- in part, rather, in the Heart of Atlanta case based on the Commerce Clause—the impact on commerce of discriminating in public accommodations. And so, the question is, “What impact would this litigation, and maybe broader litigation regarding Congress’s Commerce Clause powers, have with respect to public accommodations and discrimination?” And the viewer also adds, “Alternatively, would the Equal Protection Clause in the Fourteenth Amendment and perhaps the Privileges or Immunities Clause, reach that -- be available for Congress to reach that sort of conduct?” That’s practically a law school course in and of itself.

 

Robert Alt:  Yeah. No. There’s a lot to unpack there. So with regard to what potential impact this would have -- the interesting thing is I don’t -- I’d have to look back at Heart of Atlanta and some of the related cases, but I don’t think that they really relied on the aggregation theory or substantial effects doctrine, with regard to public -- application of the Civil Rights Act to public accommodations. I’ll yield to you, Andrew, if I am misremembering, but I don’t recall that.

 

Andrew Grossman:  That might have been the instrumentalities instead, because --

 

Robert Alt:  Yes.

 

Andrew Grossman:  -- I think the idea was these are places that are involved in travel and so forth.

 

Robert Alt:  And so, if you look back to Lopez, for instance, they talk about the three category -- classes or categories of activities that the Court has upheld regulations on in the Commerce Clause context. And so, going to this -- the third prong—which is what we’re looking at—is aggregation and substantial effects doctrine through necessary and proper, that’s a different category than the channels of interstate commerce or the instrumentalities of interstate commerce—some other categories that had also been within the realm of regulation.

 

      So it’s not clear to me that this would necessarily -- and part of that actually goes back doctrinally to some of the common carrier doctrine dating back to jolly old England and the idea -- some of the doctrine here arose from the idea that the inns that were on the king’s highway were required by virtue of the license to take all comers, and so some of that actually infuses this doctrine as well, with regard to instrumentalities of interstate commerce and antidiscrimination principles. That’s a separate thing, but I think that that was a subtext as well to some of those cases. 

 

      But, yes, I think because of the fact that it’s a different category -- I think it’s worth—if you want to think about what the potential implications are here -- to take a look at Justice Thomas’s concurring opinion in Lopez. I think, there, he talks about what the substantial effects and aggregation theory has done to the Interstate Commerce Clause and the doctrine therein. One of the arguments he makes—which I think it’s particularly helpful for students who are trying to think about this -- is if you take what the Court has done under the substantial effects and interstate -- substantial effects and aggregation principles and look, then, at the other enumerated powers under Article I Section 8—the powers to establish post roads, etc., to coin money—many of these things you would look at, and say, “Why is it if one believes in the rule against surplusage and thinks that, in fact, we have to give each clause within the Constitution its due meaning -- why is it that the framers wasted their time with regard to enumerating all these various and sundry powers?” It would seem that all or most of these powers would be subsumed under the Commerce Clause, under the aggregation and substantial effects doctrine through necessary and proper. But all that’s to say -- as I said, going back to that, I think it’s a different category of regulation under the Commerce Clause.

 

Andrew Grossman:  And that’s before even getting to the other prong of the question, which was maybe this is all just beside the point because there’s the enforcement section of the Fourteenth Amendment, and even under the restrictions of cases like City of Boerne, presumably Congress could reach that sort of invidious discrimination in private accommodations. Anyway, that’s, at least, an idle thought.

 

      We have one last viewer question. If anybody else has a question, please add it to the Q&A queue. The question is, “Is there a Twenty-First Amendment issue in this case?” Let me broaden that and just -- how does the Twenty-First Amendment relate to all of this?

 

Robert Alt:  In terms of that, I’d say, first of all, it probably does insofar as I think some of the background narrative that I talked about before -- I think that the regulation probably arose as a precursor to federal prohibition, and in some sense, it’s vestigial. It is a vestigial organ that still has enforcement authority, if that makes sense, which is to say it’s -- this is not something that we don’t know, that doesn’t actually perform any function. In this particular case, it certainly is enforced, but the -- some of the reasoning -- what seems to have been the reasoning behind it -- the rising temperance and prohibition movements, obviously, were superseded by the Twenty-First Amendment. In some sense, I think that the gloss there to it -- the Twenty-First Amendment granted greater authority to the states with regard to regulation. And so, it makes even less sense, in some sense, that the federal government is persisting in a prohibition with regard to home distilling after the repeal of prohibition, more generally, and the granting of greater authority to the states. But I’d be curious of your -- my co-counsel thoughts on that, as well.

 

Andrew Grossman:  [Laughter] Well, I think you got it exactly right. If you look at it from a 10,000-foot level, the Twenty-First Amendment, to my mind, simply confirms that this is something that really is the proper province of the states—to regulate the possession and use of a substance as a substance. And I don’t think it necessarily adds anything to this particular challenge, but it certainly is an interesting and perhaps important part of the context.

 

      And with that said, I think we are out of questions. So let me, again, thank our viewers today. Let me thank The Federalist Society, and, of course, let me thank Mr. Robert Alt for all of his interesting insights and discussions of the Ream case. Thank you.

 

Robert Alt:  Thank you.

 

Chayila Kleist:  I’ll echo those thanks. I appreciate you both joining us today and carving out this section of your afternoons. Thank you also to our audience for joining and participating. We welcome listener feedback by email at [email protected], and, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, this webinar can adjourn.