Amicus Curiae Brief — John Ream, Petitioner v. Department of the Treasury, et al.

No. 26-93

In the Supreme Court of the United States

__________

JOHN REAM,

Petitioner,

v.

U.S. DEPARTMENT OF THE TREASURY, et al.,

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

__________

Thomas A. Berry

Counsel of Record

Matthew P. Cavedon

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

August 20, 2026

i

QUESTIONS PRESENTED

1. Whether the federal prohibition on home

distilling exceeds Congress’s enumerated powers.

2. Whether the Court should overrule Raich or at

least clarify that Congress’s commerce power does not

extend to regulation of local, noncommercial conduct

and that its exercise is subject to meaningful judicial

scrutiny.

ii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ......................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION

AND SUMMARY OF THE ARGUMENT ................... 2

ARGUMENT ................................................................ 6

I.

THIS COURT SHOULD RESTORE

THE ORIGINAL MEANING OF THE

COMMERCE CLAUSE. .................................. 6

A. The Original Meaning of the

Commerce Clause Is Narrow. .................... 6

1. “Commerce” was originally understood as

trade alone........................................................ 6

2. “Among the several States” originally meant

“between people of different states.” ............. 10

B. The Necessary and Proper Clause

Cannot Expand the Limited

Commerce Power. ..................................... 11

1. “Necessary” does not mean “convenient.” ... 12

2. “Proper” provides a jurisdictional test. ........ 15

3. Courts have a duty to check abuses of this

Clause. ............................................................ 16

C. Current Doctrine Contradicts the

Original Meaning of Both Clauses. .......... 17

II. THIS CASE WARRANTS REVIEW. ............ 20

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935) .................................... 18

Bond v. United States, 564 U.S. 211 (2011) .............. 21

Bond v. United States, 572 U.S. 844 (2014) .............. 14

Boyle v. Bessent, No. 2:24-cv-00081-SDN,

2025 WL 509519 (D. Me. Feb. 14, 2025) ........... 4, 18

Carter v. Carter Coal Co., 298 U.S. 238 (1936)........... 9

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ................................................ 20

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ........ 11

Gonzales v. Raich, 545 U.S. 1 (2005) .............. 5, 19, 21

Gregory v. Ashcroft, 501 U.S. 452 (1991) .................. 21

Kidd v. Pearson, 128 U.S. 1 (1888) ............................. 9

Landor v. La. Dep’t of Corrs., 225 L. Ed. 2d

394 (2026) ............................................................... 17

License Tax Cases, 72 U.S. (5 Wall.) 462

(1867) ...................................................................... 17

Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803) ........................................................................ 4

McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316 (1819) ......................................................... 13, 16

McNutt v. U.S. Dep’t of Justice, 173 F.4th 204

(5th Cir. 2026) .............................................. 2, 12, 22

iv

NFIB v. Sebelius, 567 U.S. 519 (2012)

.......................................................... 6, 12, 15, 16, 22

Printz v. United States, 521 U.S. 898 (1997) ............ 20

Smith v. Allwright, 321 U.S. 649 (1944) ................... 20

Trade-Mark Cases, 100 U.S. 82 (1879) ..................... 17

United States v. Comstock, 560 U.S. 126

(2010) ...................................................................... 15

United States v. Dewitt, 76 U.S. (9 Wall.) 41

(1869) ................................................................ 11, 17

United States v. E.C. Knight Co., 156 U.S. 1

(1895) ........................................................................ 9

United States v. Hemani, 225 L. Ed. 2d 314

(2026) ........................................................................ 3

United States v. Kebodeaux, 570 U.S. 387

(2013) ...................................................................... 14

United States v. Lopez, 514 U.S. 549 (1995)

.................................................................... 4, 7, 9, 20

United States v. Morrison, 529 U.S. 598

(2000) ...................................................................... 15

Wickard v. Filburn, 317 U.S. 111 (1942) .... 4, 5, 10, 18

Statutes & Legislative Materials

26 U.S.C. § 5178........................................................... 2

26 U.S.C. § 5601........................................................... 2

Other Authorities

1 ANNALS OF CONG. (Joseph Gales ed., 1791) ........... 13

Alexander Hamilton, Final Version of an

Opinion on the Constitutionality of an Act

to Establish a Bank (Feb. 23, 1791) ...................... 12

v

Clay Risen, Back in the Mix: New England

Rum, THE N.Y. TIMES (Oct. 30, 2012)...................... 3

Gary Lawson & Patricia B. Granger, The

“Proper” Scope of Federal Power: A

Jurisdictional Interpretation of the

Sweeping Clause, 43 DUKE L.J. 267 (1993) ..... 15, 16

GERALD GUNTHER, JOHN MARSHALL’S

DEFENSE OF MCCULLOCH V. MARYLAND

(1969) ...................................................................... 13

JONATHAN ELLIOT, THE DEBATES IN THE

SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION

(2d ed. 1863) ................................................. 8, 14, 17

LETTERS AND OTHER WRITINGS OF JAMES

MADISON (1865) ........................................................ 9

Mount Vernon Ladies’ Ass’n, George

Washington’s Distillery, GEORGE

WASHINGTON’S MOUNT VERNON ............................... 3

NATHAN BAILEY, AN UNIVERSAL

ETYMOLOGICAL ENGLISH DICTIONARY

(26th ed. 1789) .......................................................... 7

Randy Barnett, The Original Meaning of the

Necessary and Proper Clause, 6 U. PA. J.

CONST. L. 183 (2003) ...................... 12, 14, 15, 16, 17

Randy E. Barnett, New Evidence of the

Original Meaning of the Commerce Clause,

55 ARK. L. REV. 847 (2003) ....................................... 8

Randy E. Barnett, The Original Meaning of

the Commerce Clause, 68 U. CHI. L. REV.

101 (2001) ................................................. 7, 8, 10, 14

vi

SAMUEL JOHNSON, A DICTIONARY OF THE

ENGLISH LANGUAGE (4th ed. 1773) .......................... 7

ST. GEORGE TUCKER, BLACKSTONE’S

COMMENTARIES: WITH NOTES OF REFERENCE

TO THE CONSTITUTION AND LAWS OF THE

FEDERAL GOVERNMENT OF THE UNITED

STATES AND OF THE COMMONWEALTH OF

VIRGINIA (1803) .................................... 10, 12, 14, 16

Stephen Gardbaum, Rethinking

Constitutional Federalism, 74 TEX. L. REV.

795 (1996) ............................................................... 12

T. SHERIDAN, A COMPLETE DICTIONARY OF THE

ENGLISH LANGUAGE (6th ed. 1796) .......................... 7

THE FEDERALIST No. 11 (Hamilton) ........................... 10

THE FEDERALIST No. 17 (Hamilton) ............................. 8

THE FEDERALIST No. 42 (Madison) ............................ 10

THE FEDERALIST No. 44 (Madison) ............................ 13

THE FEDERALIST NO. 45 (Madison) .............................. 3

THE FEDERALIST No. 51 (Madison) ............................ 21

WILLIAM HOGELAND, THE WHISKEY

REBELLION: GEORGE WASHINGTON,

ALEXANDER HAMILTON AND THE FRONTIER

REBELS WHO CHALLENGED AMERICA’S

NEWFOUND SOVEREIGNTY (2006).............................. 3

Regulations

Revision of Distilled Spirits Plant

Regulations, 76 Fed. Reg. 9080 (2011) .................... 3

Constitutional Provisions

U.S. CONST. art. I, § 8, cl. 18...................................... 11

vii

U.S. CONST. art. I, § 8, cl. 3 ..................................... 4, 6

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Toward that end,

Cato’s Robert A. Levy Center for Constitutional

Studies publishes books and studies about legal issues,

conducts conferences, produces the annual Cato

Supreme Court Review, and files amicus briefs in

constitutional law cases.

This case interests Cato because it concerns the

limits on the federal government’s power to regulate

intrastate activity, a foundational feature of our

constitutional structure.

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than Amicus funded

its preparation or submission. All parties were timely notified of

the filing of this brief.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

A former aerospace engineer and current

homebrewer, Ohioan John Ream wants to home-distill

spirits to enjoy with his wife.2 He would gladly register

a still and pay the relevant federal tax, but an 1868

federal law prohibits home distilling.3 Operating a still

in your home—or on a parcel “connected with” it—is a

federal felony.4 Mr. Ream sued the government,

alleging that this ban violates the Constitution.5

The district court dismissed his complaint for lack

of standing.6 Though the Sixth Circuit disagreed with

this holding, it upheld the ban as a necessary and

proper means of enforcing the federal tax on distilled

spirits, thereby breaking with a Fifth Circuit decision

issued just 11 days earlier.7 See McNutt v. U.S. Dep’t

of Justice, 173 F.4th 204 (5th Cir. 2026), reh’g en banc

denied, 2026 U.S. App. LEXIS 16688 (5th Cir. June 9,

2026).

This Court should grant Mr. Ream’s petition as to

both questions presented and reverse the decision

below.

2 Pet. at 6–7.

3 Id. at 7; 26 U.S.C. § 5178(a)(1)(B).

4 § 5601(a)(6).

5 Pet. at 7.

6 Pet. App’x at 31 et seq.

7 Id. at 1 et seq.

3

Americans distilled spirits on their homesteads

well before independence.8 Colonial Americans

enjoyed drinking rum and grain whiskey, and by 1770,

New England alone had over 150 distilleries.9

Prominent Founders like George Washington hosted

successful distilleries on their homesteads.10 Yet today

the federal government bans home distilling outright.

See Revision of Distilled Spirits Plant Regulations, 76

Fed. Reg. 9080 (2011) (“While Federal law allows for

the limited home production of wine and beer, no such

provision exists for distilled spirits”).

Mr. Ream is right that this ban exceeds Congress’s

constitutional powers. “The powers delegated by the

. . . Constitution to the federal government are few and

defined.” THE FEDERALIST No. 45 (Madison).

Accordingly, Congress possesses only those powers

enumerated in the Constitution. Yet over time, judicial

expansion of the Commerce Clause and the Necessary

See, e.g., WILLIAM HOGELAND, THE WHISKEY REBELLION:

GEORGE WASHINGTON, ALEXANDER HAMILTON AND THE FRONTIER

REBELS WHO CHALLENGED AMERICA’S NEWFOUND SOVEREIGNTY

66 (2006) (noting that in revolutionary America, “[d]istilling went

on in home stillhouses, at community stills, and in large-scale

commercial operations”); cf. United States v. Hemani, 225 L. Ed.

2d 314, 326 (2026) (detailing “a ‘culture of copious drinking’ in

early America”) (citation omitted).

9 See Clay Risen, Back in the Mix: New England Rum, THE N.Y.

TIMES (Oct. 30, 2012), https://nyti.ms/4fojAmI.

10 See Mount Vernon Ladies’ Ass’n, George Washington’s Distillery, GEORGE WASHINGTON’S MOUNT VERNON (accessed July 25,

2026), https://bit.ly/4fywv3Z.

8

4

and Proper Clause has transformed a limited power to

regulate interstate trade into a sweeping license to

regulate nearly all human activity—and even

inactivity. See, e.g., Boyle v. Bessent, No. 2:24-cv00081-SDN, 2025 WL 509519, at *36 (D. Me. Feb. 14,

2025) (holding that “the mere existence of a corporate

entity [formed under state law]—even one engaging in

no commercial transactions with no assets to its

name”—constitutes “commerce” that Congress may

regulate). The result is a national police power

untethered

from

the

Constitution’s

original

understanding and incompatible with the libertypreserving structure it established.

The power to “regulate Commerce” conducted

“among the . . . States” is among Congress’s “defined

and limited” functions. U.S. CONST. art. I, § 8, cl. 3;

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176

(1803). The original public meaning of the Commerce

Clause was that Congress could regulate the trade and

transportation of goods and persons across state lines.

It did not convey authority to control or prohibit purely

intrastate activity such as home distilling.

Unfortunately, this Court has strayed from that

original understanding. See United States v. Lopez,

514 U.S. 549, 584–602 (1995) (Thomas, J., concurring).

In Wickard v. Filburn, the Court held that the

Commerce Clause authorizes Congress to regulate

even a farmer’s growing and consuming wheat entirely

on his own farm. 317 U.S. 111, 118–29 (1942). The

Court reasoned that Congress may regulate local

5

activities if, in the aggregate, they exert a substantial

economic effect on interstate commerce. Id. at 124–29.

In Gonzales v. Raich, this Court extended

Wickard’s reasoning further, upholding the Controlled

Substances Act’s prohibition on the private, intrastate

cultivation and use of marijuana. 545 U.S. 1, 19 (2005).

The majority first concluded that the plaintiffs’

marijuana activities were “economic.” Id. It further

held that courts need not determine whether regulated

activities actually substantially affect interstate

commerce in the aggregate, but only whether Congress

had a “rational basis” for concluding that they do. Id.

at 22, 25–26. Raich is the apex of congressional

authority to regulate intrastate activity.

Wickard’s “substantial effects” test, coupled with

Raich’s deferential rational basis standard, has

drastically weakened the Commerce Clause’s limits.

For more than a century after the Founding, Congress

recognized that it lacked authority to regulate purely

local activity under the Commerce Clause,

notwithstanding aggregate effects on interstate

markets. Yet this Court upheld novel New Deal

legislation, concluding that Congress held vastly more

power than it had ever been understood to.

It is time to restore the Constitution’s first

principle of limited national power. This case presents

an ideal vehicle. By extending federal criminal law to

purely in-home, noncommercial activity, the decision

below collapses the distinction between national and

6

state authority and erases structural limits that

preserve federalism.

The Constitution does not require another century

of overreach—it demands fidelity to its text and

original design. This Court should grant the petition

for a writ of certiorari, overrule Raich, and reaffirm

that federal powers are both enumerated and limited.

ARGUMENT

I.

THIS COURT SHOULD RESTORE THE

ORIGINAL MEANING OF THE COMMERCE

CLAUSE.

Properly understood, Article I, Section 8’s

Commerce Clause provides that Congress can regulate

only interstate trade. That Section’s Necessary and

Proper Clause is supposed to be ancillary to provisions

like this rather than a supplement to them. This Court

should revive the original meaning of both Clauses.

A. The Original Meaning of the Commerce

Clause Is Narrow.

1. “Commerce” was originally understood as

trade alone.

The Commerce Clause lets Congress “regulate

Commerce . . . among the several States.” U.S. CONST.

art. I, § 8, cl. 3. “Whatever may be the conceptual limits

upon the Commerce Clause . . . , they cannot be such

as will enable the Federal Government to regulate all

private conduct . . . .” NFIB v. Sebelius, 567 U.S. 519,

647 (2012) (Scalia, Kennedy, Thomas, & Alito, JJ.,

dissenting). At the time of ratification, “commerce”

7

referred only to trading items.11 It was not an umbrella

term

that

encompassed

manufacturing

and

agriculture, even though these produced goods that

could enter commerce. Contemporaneous dictionaries

defined “commerce” as “selling, buying, and bartering,

as well as transporting for these purposes.” Lopez, 514

U.S. at 585–86 (Thomas, J., concurring) (citing 1

SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH

LANGUAGE 361 (4th ed. 1773) (defining commerce as

“Intercour[s]e; exchange of one thing for another;

interchange of any thing; trade; traffick”); NATHAN

BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH

DICTIONARY (26th ed. 1789) (“trade or traffic”); T.

SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH

LANGUAGE (6th ed. 1796) (“Exchange of one thing for

another; trade, traffick”)). The Framers shared this

understanding:

In Madison’s notes for the Constitutional

Convention, the term “commerce”

appears thirty-four times in the speeches

of the delegates. Eight of these are

unambiguous references to commerce

with foreign nations which can only

consist of trade. In every other instance,

the terms “trade” or “exchange” could be

substituted for the term “commerce” with

the apparent meaning of the statement

11 See Randy E. Barnett, The Original Meaning of the Commerce

Clause, 68 U. Chi. L. Rev. 101, 112–25 (2001) [hereinafter Barnett, Commerce].

8

preserved. In no instance is the term

“commerce” clearly used to refer to “any

gainful activity” or anything broader

than trade.12

In The Federalist Papers, the term “commerce”

appears 63 times and never unambiguously refers to

anything beyond trade and exchange.13 Even the

staunch economic nationalist Alexander Hamilton

distinguished commerce from the “supervision of

agriculture and of other concerns of a similar nature,”

which were “proper to be provided for by local

legislation.” THE FEDERALIST No. 17 (Hamilton).

Several state ratification conventions reflect the

same meaning of “commerce.” At the Massachusetts

Convention, Thomas Dawes distinguished agriculture,

commerce, and manufacturing from each other.14

During his discussion of “commerce,” he referred to

“our own domestic traffic that passes from state to

state.” Id. at 58. Similar examples can be found in the

Connecticut, New York, Pennsylvania, and Virginia

Conventions.15 “Trade” and “commerce” were often

12 Barnett, Commerce, supra, at 114–15 (citations omitted).

13 Id. at 116.

14 See 2 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE

CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION

57 (2d ed. 1863) [hereinafter DEBATES].

15 See Barnett, Commerce, supra, at 116–22; DEBATES, supra, at

188, 245, 261, 336; see also Randy E. Barnett, New Evidence of

the Original Meaning of the Commerce Clause, 55 ARK. L. REV.

847 (2003) (surveying 1,594 uses of “commerce” in the Pennsylvania Gazette from 1728 to 1800).

9

used interchangeably. Lopez, 514 U.S. at 586 (Thomas,

J., concurring). Discussing the Constitution, James

Madison later wrote, “Trade and commerce are, in fact,

used indiscriminately, both in books and in

conversation.”16

Until the New Deal Era, this Court routinely

rejected attempts to expand “commerce” to cover nontrade forms of gainful activity. Its decisions

distinguished between commerce and productive

activities like manufacturing and agriculture. See, e.g.,

Kidd v. Pearson, 128 U.S. 1, 20 (1888) (“No distinction

is more popular to the common mind, or more clearly

expressed in economic and political literature, than

that between manufactures and commerce.”). In

United States v. E.C. Knight Co., Chief Justice Fuller

wrote, “Commerce succeeds to manufacture, and is not

a part of it . . . . The fact that an article is manufactured

for export to another State does not of itself make it an

article of interstate commerce.” 156 U.S. 1, 12–13

(1895). As late as 1936, in Carter v. Carter Coal Co.,

this Court ruled that Congress could not regulate the

conditions under which coal was produced before it

became an article of commerce. 298 U.S. 238, 298

(1936). Even in Wickard, the government argued that

it was regulating “marketing” rather than production

Letter from James Madison to Professor Davis—not sent

(1832), in 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON

232, 233 (1865).

16

10

or consumption. 317 U.S. at 119. “Commerce” retained

its original, narrow meaning.

2. “Among the several States” originally meant

“between people of different states.”

Consistent with federalism, commerce confined

entirely within one state was not originally understood

to be “among the several States” and so within

Congress’s reach.17 Rather, that phrase meant

“between people of different states.”

St. George Tucker wrote: “The constitution of the

United States does not authorize congress to regulate,

or in any manner to interfere with, the domestic

commerce of any state.”18 This understanding is

consistent with the Commerce Clause’s purpose of

promoting, not restricting, interstate trade. In THE

FEDERALIST No. 42, Madison described the Clause as

authorizing trade-enabling regulation and preventing

protectionism. In THE FEDERALIST No. 11, Hamilton

envisioned “an unrestrained intercourse between the

States.”

As Chief Justice Marshall affirmed in Gibbons v.

Ogden, the enumeration of certain classes of commerce

that Congress may regulate “presupposes something

17 Barnett, Commerce, supra, at 135.

18

Appendix, in ST. GEORGE TUCKER, BLACKSTONE’S COMMEN-

TARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND

LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND

OF THE COMMONWEALTH OF VIRGINIA 250 (1803) [hereinafter

TUCKER, COMMENTARIES].

11

not enumerated, and that something, if we regard the

language or the subject of the sentence, must be the

exclusively internal commerce of a State.” 22 U.S. (9

Wheat.) 1, 195 (1824). This Court also acknowledged

in 1869 that the Clause had “always been understood

as limited by its terms; and as a virtual denial of any

power to interfere with the internal trade and business

of the separate States.” United States v. Dewitt, 76

U.S. (9 Wall.) 41, 44 (1869) (invalidating a federal

statute prohibiting the sale of certain oils).

This requirement of the Commerce Clause

independently limits Congress’s powers. No matter

how “commercial,” activity occurring wholly within a

single state lies beyond the federal government’s

reach. A factory or farm—or a homestead liquor still—

is not engaged in commerce “between” the states

unless its operations or goods cross state lines.

As originally understood, the Commerce Clause

does not let Congress ban home distilling. Neither does

the Necessary and Proper Clause.

B. The Necessary and Proper Clause Cannot

Expand the Limited Commerce Power.

Following the Commerce Clause within Article I,

Section 8, the Necessary and Proper Clause grants

Congress the power “[t]o make all Laws which shall be

necessary and proper for carrying into Execution the

foregoing Powers.” U.S. CONST. art. I, § 8, cl. 18. This

Court has misconstrued how this Clause relates to the

12

Commerce Clause in order to uphold sweeping federal

laws concerning economic activity.19

Rightly understood, the Necessary and Proper

Clause authorizes Congress to enact only those

“incidental” laws “necessary” to execute its

enumerated powers. NFIB, 567 U.S. at 559 (op. of

Roberts, C.J.); see also McNutt, 173 F.4th at 216–21

(invalidating the home-distilling ban as exceeding the

Necessary and Proper Clause vis-à-vis Congress’s

taxation power); TUCKER, COMMENTARIES, supra, at

287–88 (writing that this meaning is what was ratified

and necessary for a system of enumerated powers).

Congress cannot “reach beyond the natural limit of its

authority and draw within its regulatory scope those

who otherwise would be outside of it.” NFIB, 567 U.S.

at 560 (op. of Roberts, C.J.).

1. “Necessary” does not mean “convenient.”

Some Framers, like Rep. William Giles, defined

“necessary” as exclusively “that means without which

the end could not be produced.”20 Even the more

expansive readings of Hamilton21 and Chief Justice

19 See Stephen Gardbaum, Rethinking Constitutional Federalism,

74 TEX. L. REV. 795, 808 (1996).

20 Randy Barnett, The Original Meaning of the Necessary and

Proper Clause, 6 U. PA. J. CONST. L. 183, 195 (2003) [hereinafter

Barnett, Necessary and Proper].

21 Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank (Feb. 23, 1791),

https://bit.ly/49E5drU.

13

Marshall22 required Congress’s means to fit proper,

enumerated ends. Defending his opinion in

McCulloch, the latter wrote: “The court does not say

that the word ‘necessary’ means whatever may be

‘convenient’ or ‘useful.’ And when it uses ‘conducive to,’

that word is associated with others plainly showing

that no remote, no distant conduciveness to the object,

is in the mind of the court.” John Marshall, A Friend

to the Union No. 2, in GERALD GUNTHER, JOHN

MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND 78,

100 (1969).

The earliest sources confirm a narrower meaning of

the Clause than the one given to it by modern

jurisprudence. In a speech to the House, then-Rep.

James Madison stated that the Clause’s “meaning

must, according to the natural and obvious force of the

terms and the context, be limited to means necessary

to the end and incident to the nature of the specified

powers.”23 “The essential characteristic of the

government, as composed of limited and enumerated

powers, would be destroyed: If instead of direct and

incidental means, any means could be used.”24 As he

wrote in THE FEDERALIST No. 44, the Clause conferred

22 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)

(“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but consist with

the letter and spirit of the constitution, are constitutional.”).

23 1 ANNALS OF CONG. 1947–48 (Joseph Gales ed., 1791).

24 Id.

14

nothing more than the “unavoidable implication” from

the preceding enumeration of powers. He expressed

the same sentiment at the Virginia Convention,

stating that the Clause “only extended to the

enumerated powers. Should Congress attempt to

extend it to any power not enumerated, it would not be

warranted by the clause.”25 On the same occasion,

George Nicholas likewise explained that the Clause

only enables Congress to execute its enumerated

functions, supplying “no additional power.”26 This

point was reiterated at the North Carolina,

Pennsylvania, and Delaware Conventions,27 and noted

by Tucker.28

If “necessary” includes “convenient,” the Clause

contradicts the system of enumerated powers as well

as the Ninth and Tenth Amendments—not to mention

the Framers’ specific rejection of a proposal to grant

Congress general powers.29 See Bond v. United States,

572 U.S. 844, 854 (2014) (“The States have broad

authority to enact legislation for the public good—

what we have often called a ‘police power.’ The Federal

Government, by contrast, has no such authority . . . .”)

(internal citation omitted); United States v.

Kebodeaux, 570 U.S. 387, 402 (2013) (Roberts, C.J.,

concurring in the judgment) (“[A] federal police power

25 DEBATES, supra, at 455.

26 Id. at 246.

27 See Barnett, Necessary and Proper, supra, at 186.

28 TUCKER, COMMENTARIES, supra, at 288.

29 Barnett, Commerce, supra, at 130.

15

. . . does not exist.”); United States v. Morrison, 529

U.S. 598, 617–19, 618 n.8 (2000); cf. United States v.

Comstock, 560 U.S. 126, 161 (2010) (Thomas, J.,

dissenting) (noting Anti-Federalist “concern that the

Necessary and Proper Clause would give Congress

virtually unlimited power”). If “necessary” instead

means that a law must be “incidental and closely

connected to an enumerated power”30—as the Framers

in fact thought—then it accords with the rest of the

Constitution.

2. “Proper” provides a jurisdictional test.

The accompanying term “proper” limits Congress’s

power by reference to at least (1) the separation of

powers, (2) federalism, and (3) “the background rights

retained by the people.”31 It was originally understood

as a crucial failsafe for these constitutional elements.32

Even if a law is “necessary,” it will still be “improper”

and unconstitutional should it violate them. See, e.g.,

NFIB, 567 U.S. at 560 (op. of Roberts, C.J.); Comstock,

560 U.S. at 153 (Kennedy, J., concurring in the

judgment) (considering “whether essential attributes

of state sovereignty are compromised by the assertion

of federal power under the Necessary and Proper

Clause; if so, that is a factor suggesting that the power

is not one properly within the reach of federal power”);

30 Barnett, Necessary and Proper, supra, at 208.

31 Id. at 217; see also Gary Lawson & Patricia B. Granger, The

“Proper” Scope of Federal Power: A Jurisdictional Interpretation

of the Sweeping Clause, 43 DUKE L.J. 267, 297 (1993).

32 See Lawson & Granger, supra, at 297–308.

16

Gonzales, 545 U.S. at 65 (Thomas, J., dissenting)

(“. . . Congress may not use its incidental authority to

subvert basic principles of federalism and dual

sovereignty.”). This is what Chief Justice Marshall

meant in requiring Congress to choose means that

“consist with the letter and spirit of the constitution.”

McCulloch, 17 U.S. (4 Wheat.) at 421.

3. Courts have a duty to check abuses of this

Clause.

The Court should resume holding Congress to its

constitutional limits. “Congress cannot be the sole

judge of whether it is acting within its powers [because

that] . . . would give it license to pursue objects or ends

that are beyond its powers.”33 Falling under Article I,

Section 8’s introductory term “shall,” the Necessary

and Proper Clause is not discretionary.34 Chief Justice

Marshall explained in McCulloch that it was this

Court’s “duty” to invalidate violations of it. 17 U.S. (4

Wheat.) at 423; see also NFIB, 567 U.S. at 538

(majority op.) (“[T]here can be no question that it is the

responsibility of this Court to enforce the limits on

federal power by striking down acts of Congress that

transgress those limits.”).

The Clause was envisioned to “operate as a

powerful and immediate check upon the proceedings of

the federal legislature.” TUCKER, COMMENTARIES,

supra, at 288. It must, then, be justiciable. At the

33 Barnett, Necessary and Proper, supra, at 220.

34 See Lawson & Granger, supra, at 277–85.

17

Virginia Convention, Nicholas commented that should

some act fall beyond Congress’s enumerated powers,

“the judiciary will declare it void.”35 Courts should give

the Necessary and Proper Clause effect by evaluating

laws to ensure that (1) there is a means-ends fit; “(2)

the means chosen do not prohibit the rightful exercise

of freedom (or violate principles of federalism or

separation of powers); and (3) Congress’s claim to be

pursuing an enumerated end is not a pretext for

pursuing other ends not delegated to it.”36

Clarifying that federal laws failing this test—such

as the home-distilling ban Mr. Ream challenges—are

invalid would confirm that federal regulation of

matters “traditionally reserved to the States” is

“inconsistent . . . with both principles of state

sovereignty and a federal government of limited and

enumerated regulatory powers.” Landor v. La. Dep’t of

Corrs., 225 L. Ed. 2d 394, 412 (2026).

C. Current

Doctrine

Contradicts

Original Meaning of Both Clauses.

the

Until the late 1930s, this Court enforced these

limits. See Dewitt, 76 U.S. (9 Wall.) at 44 (invalidating

a federal ban on selling certain oils); Trade-Mark

Cases, 100 U.S. 82, 95–98 (1879) (holding that

Congress lacks authority to regulate trademarks not

used in interstate or foreign commerce); License Tax

Cases, 72 U.S. (5 Wall.) 462, 470–71 (1867) (stating

35 DEBATES, supra, at 443.

36 Barnett, Necessary and Proper, supra, at 221.

18

Congress has “no power” over the “internal commerce”

of the states); Carter, 298 U.S. at 308 (holding that

Congress lacks authority to regulate mining labor);

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 543–50 (1935) (holding that Congress may

not regulate intrastate poultry sales or labor).

Originally, true to the Constitution, Congress could

not ban a product from intrastate commerce, whatever

its aggregate effects on markets nationwide. However,

modern jurisprudence has gone astray. Beginning

with Wickard and culminating in Raich, this Court

transformed the Commerce and Necessary and Proper

Clauses into a basis for what the Founders rejected: a

federal police power.

Wickard’s “substantial effects” test excises the

commerce requirement from the Commerce Clause,

letting Congress regulate purely intrastate activity—

arguably, even intrastate inactivity37—that it

hypothesizes might nudge interstate markets.

Wickard, 317 U.S. at 128–29. The test likewise erases

the words “among the several States” and substitutes

armchair economic forecasting for the Constitution’s

jurisdictional line. Thus, Wickard itself upheld federal

power over a farmer growing wheat on his own farm

for consumption there. Id. at 127.

Wickard culminated six decades later in Raich,

which determined over impassioned dissents that

Congress could prohibit local cultivation and

37 See Boyle, 2025 WL 509519, at *36.

19

possession of marijuana for medical use as permitted

under California law. 545 U.S. at 19; see also id. at 57

(O’Connor, J., dissenting) (“This overreaching stifles

an express choice by some States, concerned for the

lives and liberties of their people, to regulate medical

marijuana differently.”); id. at 65 (Thomas, J.,

dissenting) (“If the Federal Government can regulate

growing a half-dozen cannabis plants for personal

consumption (not because it is interstate commerce,

but because it is inextricably bound up with interstate

commerce), then Congress’ Article I powers—as

expanded by the Necessary and Proper Clause—have

no meaningful limits.”). As Justice Thomas protested,

If the majority is to be taken seriously,

the Federal Government may now

regulate quilting bees, clothes drives, and

potluck suppers throughout the 50 States.

This makes a mockery of Madison’s

assurance to the people of New York that

the “powers delegated” to the Federal

Government are “few and defined,” while

those of the States are “numerous and

indefinite.”

Id. at 69 (Thomas, J., dissenting).

Modern precedent redefines “commerce” to mean

all plausibly commercial activity (or inactivity) and

“necessary and proper” to mean whatever Congress

hypothesizes to be convenient. It has turned Article I,

Section 8’s carefully chosen limits into excuses ready

at hand for whatever policing the federal government

20

wants to undertake. See Printz v. United States, 521

U.S. 898, 923 (1997) (describing the Necessary and

Proper Clause as “the last, best hope of those who

defend ultra vires congressional action”).

“[W]hen convinced of former error, this Court has

never felt constrained to follow precedent.” Smith v.

Allwright, 321 U.S. 649, 665 (1944). When dealing

with matters of constitutional law, it “freely exercise[s]

its power to reexamine” decisions, id., and “places a

high value on” correctness, Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215, 264 (2022). This Court

should begin to correct course with Mr. Ream’s case.

II. THIS CASE WARRANTS REVIEW.

This case squarely challenges the key distortions in

Commerce Clause and Necessary and Proper Clause

jurisprudence. Criminalizing home distillation of

liquor for family enjoyment regulates not commerce,

and not trafficking in contraband, but rather a

household hobby. Cf. Lopez, 514 U.S. at 561 (majority

op.) (invalidating “a criminal statute that by its terms

has nothing to do with ‘commerce’ or any sort of

economic enterprise”). The activity at issue here is not

interstate. Banning it is neither necessary nor proper

to regulating interstate commerce in untaxed alcohol.

Nor can a federal law that invades the states’

reserved police powers be “proper.” Congress’s ban

prohibits a purely local activity within Ohio’s

jurisdiction. See id. at 561 n.3; Gonzales, 545 U.S. at

66 (Thomas, J., dissenting) (“Here, Congress has

21

encroached on States’ traditional police powers to

define the criminal law and to protect the health,

safety, and welfare of their citizens. Further, the

Government’s rationale—that it may regulate the

production or possession of any commodity for which

there is an interstate market—threatens to remove

the remaining vestiges of States’ traditional police

powers.”) (internal citations omitted). The Framers

divided power between the national and state

governments not merely to protect state prerogatives,

but to preserve individual freedom. Madison wrote of

federalism as providing “a double security . . . to the

rights of the people.” THE FEDERALIST No. 51

(Madison). This Court, too, has recognized that

federalism “reduce[s] the risk of tyranny and abuse,”

Gregory v. Ashcroft, 501 U.S. 452, 458 (1991), and

“secures the freedom of the individual,” Bond v. United

States, 564 U.S. 211, 221 (2011). “In the tension

between federal and state power lies the promise of

liberty.” Gregory, 501 U.S. at 459. Allowing Congress

to regulate purely local conduct is improper for a

further reason: it violates federalism.

To be sure, the taxing power issues in this case

merit review as well, yet it is not possible to award Mr.

Ream relief and fully resolve this dispute without also

addressing the Commerce Clause. Mr. Ream states

that he will pay the federal tax on distilled spirits if

allowed to have a home distillery.38 The Sixth Circuit

38 Pet. at 7.

22

accepted that allegation to be true—as it had to,

because the case was decided on Respondents’ motion

to dismiss.39 Further, as the Fifth Circuit recently

held, the ban on home distilling does not raise revenue;

it is “an anti-revenue provision that prevents distilled

spirits from coming into existence.” McNutt, 173 F.4th

at 216. A measure “preventing activity lest it give rise

to tax evasion” is not “an exercise of the taxation

power.” Id. Perhaps recognizing this, Respondents

filed a supplemental brief below arguing that the

Commerce Clause sustains the ban.40 Reviewing the

taxing-power question alone could result in nothing

more than a remand to the Sixth Circuit to consider

the Commerce Clause argument that Respondents

have already raised.

The original constitutional design reflected in the

Commerce and Necessary and Proper Clauses lies

dormant because the courts have refused to give it

effect. Awarding Mr. Ream complete relief would

entail reviving it.

CONCLUSION

“[T]here are structural limits upon federal power—

upon what it can prescribe with respect to private

conduct, and upon what it can impose upon the

sovereign States.” NFIB, 567 U.S. at 647 (Scalia,

Kennedy, Thomas, & Alito, JJ., dissenting). This Court

should grant certiorari as to both questions presented,

39 Pet. App’x at 6.

40 Pet. App’x at 70 et seq.

23

overrule Raich, and restore the original meaning of the

Commerce and Necessary and Proper Clauses.

........................................... Respectfully submitted,

Thomas A. Berry

Counsel of Record

Matthew P. Cavedon

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

August 20, 2026