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

No. 26-93

IN THE

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JOHN REAM,

Petitioner,

v.

UNITED STATES 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 PROFESSOR RANDY E. BARNETT

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

BRADLEY G. HUBBARD

Counsel of Record

BENJAMIN D. WILSON

BRYSTON C. GALLEGOS

JAIME R. BARRIOS

JEFFREY D. GURLEY

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

bhubbard@gibsondunn.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Interest of Amicus Curiae ........................................... 1

Introduction ................................................................. 2

Argument ..................................................................... 5

I. The Court Should Grant Review to Overrule

Gonzales v. Raich. .................................................. 5

II. The Court Should Overrule Raich—Or, At

Minimum, Clearly Distinguish It. ......................... 6

A. Raich Is Inconsistent with the Original

Public Meaning of the Commerce and

Necessary and Proper Clauses. ........................ 7

B. Raich Is Also Inconsistent with This

Court’s Pre- and Post-Raich Decisions. ......... 15

C. At Minimum, the Court Should Clarify

That Raich Doesn’t Permit Congress to

Regulate Home Distilling for Personal

Consumption—A Purely Local, Noneconomic Activity. ......................................... 20

Conclusion ................................................................. 23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Chisholm v. Georgia,

2 U.S. (2 Dall.) 419 (1793) .................................. 2

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ......................... 10, 11

Gonzales v. Raich,

545 U.S. 1 (2005) .............. 1, 2, 3, 5, 6, 7, 8, 13,14

15, 18, 19, 20, 21, 22

Kinsella v. U.S. ex rel. Singleton,

361 U.S. 234 (1960) ........................................... 11

Landor v. La. Dep’t of Corr. & Pub. Safety,

146 S. Ct. 1931 (2026) ............................... 3, 7, 17

The License Tax Cases,

72 U.S. (5 Wall.) 462 (1867) .............................. 11

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) ........................... 12

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ..... 2, 13, 14, 17, 18

McNutt v. U.S. DOJ,

173 F.4th 204 (5th Cir. 2026) ........... 3, 15, 21, 22

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ............................... 11, 19, 21

Printz v. United States,

521 U.S. 898 (1997) ........................................... 12

Riley v. Bondi,

606 U.S. 259 (2025) ............................................. 6

iii

Thurston Motor Lines, Inc. v.

Jordan K. Rand, Ltd.,

460 U.S. 533 (1983) ............................................. 5

Trump v. Hawaii,

585 U.S. 667 (2018) ............................................. 5

United States v. Dewitt,

76 U.S. (9 Wall.) 41 (1869) .......................... 15, 21

United States v. Hemani,

146 S. Ct. 1677 (2026) ......................................... 8

United States v. Kebodeaux,

570 U.S. 387 (2013) ........................................... 19

United States v. Lopez,

514 U.S. 549 (1995) ............... 7, 15, 16, 17, 18, 19

United States v. Morrison,

529 U.S. 598 (2000) ......................... 16, 17, 18, 19

Wickard v. Filburn,

317 U.S. 111 (1942) ..................................... 16, 20

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 3 ............................. 2, 8, 10

U.S. Const. art. I, § 8, cl. 18 ....................... 11, 12, 17

Statutes

26 U.S.C. § 5042 ..................................................... 21

26 U.S.C. § 5053 ..................................................... 21

26 U.S.C. § 5178 ....................................................... 3

26 U.S.C. § 5601 ....................................................... 3

26 U.S.C. § 5615 ....................................................... 3

iv

Other Authorities

1 Samuel Johnson,

A Dictionary of the English Language

(6th ed. 1785)....................................................... 8

2 The Debates in the Several State

Conventions on the Adoption of the

Federal Constitution

(Jonathan Elliot ed., 2d ed. 1836) ...................... 9

Alexander Hamilton,

Opinion on the Constitutionality of an

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

in 8 The Papers of Alexander Hamilton

(Harold C. Syrett ed., 1965) .............................. 12

The Federalist No. 11 (Hamilton) ............................ 9

The Federalist No. 23 (Hamilton) .......................... 10

The Federalist No. 35 (Hamilton) ............................ 9

The Federalist No. 42 (Madison)............................ 10

The Federalist No. 45 (Madison)............................ 11

Gary Lawson & Patricia B. Granger,

The “Proper” Scope of Federal Power: A

Jurisdictional Interpretation of the

Sweeping Clause,

43 Duke L.J. 267 (1993) .............................. 11, 12

James Madison,

Notes of Debates in the Federal

Convention of 1787 (1966) .................................. 9

Nathan Bailey,

An Universal Etymological English

Dictionary (26th ed. 1789) .................................. 8

Randy E. Barnett,

Foreword: Limiting Raich,

9 Lewis & Clark L. Rev. 743 (2005) ................. 17

v

Randy E. Barnett,

The Original Meaning of the Necessary

and Proper Clause,

6 U. Pa. J. Const. L. 183 (2003) ........................ 12

Randy E. Barnett,

Commandeering the People: Why the

Individual Health Insurance Mandate Is

Unconstitutional,

5 N.Y.U. J.L. & Liberty 581 (2010) .................. 19

Randy E. Barnett,

Jack Balkin’s Interaction Theory of

“Commerce,”

2012 U. Ill. L. Rev. 623 ................................. 9, 13

Randy E. Barnett,

Necessary and Proper,

44 UCLA L. Rev. 745 (1997) ............................. 12

Randy E. Barnett,

New Evidence of the Original Meaning of

the Commerce Clause,

55 Ark. L. Rev. 847 (2003) .......................... 10, 14

Randy E. Barnett,

The Original Meaning of the Commerce

Clause,

68 U. Chi. L. Rev. 101 (2001)............................ 10

Thomas Sheridan,

A Complete Dictionary of the English

Language

(6th ed. 1796)....................................................... 8

Webster’s Third New International

Dictionary (1966)........................................... 6, 18

VI The Writings of James Madison

(Gaillard Hunt ed., 1906) .................................. 11

INTEREST OF AMICUS CURIAE*

Professor Randy E. Barnett is the Patrick Hotung

Professor of Constitutional Law at the Georgetown

University Law Center and the Founder and Faculty

Director of the Georgetown Center for the Constitution. He is a leading scholar of originalism, constitutional structure, and the original public meaning of

the Commerce and Necessary and Proper Clauses. He

argued Gonzales v. Raich, 545 U.S. 1 (2005), on behalf

of Angel Raich and Diane Monson.

Professor Barnett has a substantial interest in ensuring that this Court’s jurisprudence on the Commerce and Necessary and Proper Clauses remains

faithful to the Constitution’s original public meaning

and to the structural limits that preserve the distinction between national and local authority. He submits

this brief to explain why the Court should grant certiorari to make clear that the Commerce and Necessary

and Proper Clauses reach purely local, noneconomic

activity only when regulating that activity is genuinely necessary and proper to the regulation of interstate trade or transportation—and why Raich, which

abandoned that limit, should be overruled or clarified.

*

Pursuant to Supreme Court Rule 37.6, amicus represents

that this brief wasn’t authored in whole or in part by any party

or counsel for any party. No person or party other than amicus

or his counsel made a monetary contribution to the preparation

or submission of this brief. Amicus timely notified counsel for all

parties of his intention to file this brief as required by Supreme

Court Rule 37.2.

2

INTRODUCTION

Raich was wrong when it was decided, and it remains wrong today. The government’s reliance on

Raich in this case—to defend the federal prohibition

on distilling spirits for personal consumption in one’s

own home—confirms as much. The courts of appeals

have squarely split on the constitutionality of that

prohibition. In resolving that split, this Court should

confirm that Congress lacks the power to regulate (or

prohibit) truly local, noneconomic activity—such as

the distillation of spirits in one’s home for personal

use at issue here—and either overrule or clarify Raich.

The federal government has “no claim to any authority but such as the States have surrendered” to it.

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793)

(Iredell, J.) (emphasis omitted). Among those surrendered powers is the Commerce power, which permits

Congress to “regulate Commerce * * * among the several States.” U.S. Const. art. I, § 8, cl. 3.

At the Founding, that phrase was understood to

permit Congress to govern interstate trade, exchange,

and transportation. The States didn’t surrender the

power to regulate purely intrastate conduct, such as

farming, mining, or manufacturing—much less the

power to regulate what a citizen does with his own

property, in his own home, for his own use.

The Necessary and Proper Clause permits Congress to reach some local conduct as a means of executing its Commerce power, and the original public

meaning of the Clause authorizes only laws genuinely

“incidental to those powers which are expressly

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

316, 411 (1819).

3

Here, the government’s use of Raich confirms the

degree to which Congress has encroached on States’

power to regulate purely local, intrastate activities—

such as growing marijuana or distilling spirits for personal consumption—in a manner wholly inconsistent

with the Constitution’s original understanding. This

Court should restore clarity—and the balance of

power between the federal and State governments—

by overruling Raich and confirming that Congress

lacks the power to prohibit purely local, noneconomic

activity without a meaningful showing that reaching

this activity is necessary to the execution of its enumerated powers. Landor v. La. Dep’t of Corr. & Pub.

Safety, 146 S. Ct. 1931, 1946–48 (2026).

The government convinced the Sixth Circuit that

the federal prohibition on home distilling was a “necessary and proper” way of exercising its Taxing

power—protecting tax revenue by banning the taxed

activity.

Pet. App. 11–19; see 26 U.S.C.

§§ 5178(a)(1)(B), 5601(a)(6), 5615. If that sounds nonsensical, that’s because it is—as the Fifth Circuit concluded in McNutt v. U.S. Department of Justice, 173

F.4th 204 (5th Cir. 2026).

This Court should grant review on both questions.

This case presents an ideal vehicle to confirm that

Raich was inconsistent with the original public meaning of the Commerce and Necessary and Proper

Clauses when it was decided, and it remains inconsistent with those provisions—and with this Court’s

own decisions. Raich was wrong in two respects: its

definition of “economic,” which it took from a 1966 dictionary; and its use of rational basis review to assess

whether the prohibition of local activity is “essential”

4

to the regulation of interstate commerce.

these errors require correction.

Both of

Additionally, resolving only the taxing-power issue won’t finally resolve the home-distilling ban. The

government argued below that the ban was a valid exercise of Congress’s Commerce power, too. Pet. App.

74–83. That argument relied wholly on Raich, a decision that this Court and this Court alone has the

power to overrule or clarify. Ibid. Now, before this

Court, the government “is no longer advancing that

theory.” BIO 11. The Court shouldn’t rely on the future indulgence of the government to rule on the constitutional viability of Raich.

At the end of the day, this case isn’t about whether

home distilling is wise, safe, or desirable—the States

remain free to regulate it (or prohibit it altogether).

It’s about the Constitution’s vertical division of power

between the federal and State governments. Under

both the original understanding of the constitutional

text and a faithful reading of this Court’s pre- and

post-Raich decisions, it’s clear that Congress lacks the

power to criminalize the production of spirits in one’s

home for personal consumption. That’s because the

activity is neither commerce nor economic activity,

and because prohibiting it isn’t necessary and proper

for the regulation of interstate commerce.

The Court should grant the petition because this

case presents an ideal vehicle for overruling Raich or,

at minimum, clarifying that it doesn’t extend to prohibiting the purely local, noneconomic conduct at issue

here.

5

ARGUMENT

I.

THE COURT SHOULD GRANT REVIEW

OVERRULE GONZALES V. RAICH.

TO

The time to revisit Raich is long overdue, and its

continued vitality is squarely presented here. Below,

the government argued Congress has the power to ban

home distilling under both its Taxing power and its

Commerce power. Pet. App. 74–83. The Sixth Circuit

resolved the case on taxing-power grounds, pretermitting the Commerce Clause question. But resolution of

the ultimate issue in this case—whether the homedistilling ban exceeds Congress’s enumerated powers—requires addressing, and resolving, both the

government’s Taxing power and its Commerce power

arguments.

Whether to overrule Raich is a purely legal question that’s squarely presented and ripe for this Court’s

resolution. Below, the government staked its Commerce Clause argument on Raich. Pet. App. 76–83.

And this Court regularly resolves cases on legal questions—like Raich’s continued viability—that were

pressed but not decided below. See, e.g., Trump v. Hawaii, 585 U.S. 667, 682, 697–702 (2018); Pet. 13 (collecting cases).

There isn’t any reason to delay revisiting Raich,

either. Resolving the taxing-power question alone inevitably delays resolution of this case—especially

given that the courts of appeals can’t revisit Raich

themselves. See Thurston Motor Lines, Inc. v. Jordan

K. Rand, Ltd., 460 U.S. 533, 535 (1983) (“only this

Court may overrule one of its precedents”). And the

government’s position before this Court, BIO 11, isn’t

6

reason to pass on the important constitutional questions presented here. E.g., Riley v. Bondi, 606 U.S.

259, 266 (2025) (granting review where government

agreed with petitioner). This Court and this Court

alone can restore clarity and enforce the original public meaning of the Commerce and Necessary and

Proper Clauses—and this case presents an ideal vehicle for doing so.

II. THE COURT SHOULD OVERRULE RAICH—OR,

AT MINIMUM, CLEARLY DISTINGUISH IT.

As the three dissenting Justices concluded, Raich

was wrong when it was decided—and remains equally

wrong two decades later. Raich upheld the Controlled

Substances Act as applied to two Californians who

grew marijuana at home for their own medical consumption—as expressly authorized by state law. 545

U.S. at 5–7. According to the Raich majority, the

Commerce and Necessary and Proper Clauses together authorized Congress to regulate purely intrastate, noneconomic activity on two theories: first, that

the local activity in question was “economic”; second,

that regulating this local activity was “essential” to

Congress’s regulation of interstate commerce. Id. at

25–26, 30–31.

The Raich Court primarily justified its broad ruling by describing marijuana regulation as “quintessentially economic” because it involved “the production, distribution, and consumption of commodities.”

545 U.S. at 25–26. Its only authority for this characterization was Webster’s Third New International Dictionary. But under Webster’s sweeping definition,

Congress may regulate vast swaths of personal activities that aren’t, in fact, economic. Justice Scalia was

7

careful not to adopt the majority’s definition of “economic,” and the Court should now reject it. See 545

U.S. at 36–38 (Scalia, J., concurring in the judgment).

Responding to the respondents’ claim that their

activity was noneconomic, the Court adopted a secondary theory: permitting the wholly intrastate cultivation, possession, and use of marijuana solely for

personal consumption would undercut Congress’s interstate regulation of controlled substances, and Congress need only show a “rational basis” for so believing. 545 U.S. at 22. That framing permits Congress

to regulate virtually any purely intrastate local activity—whether economic or noneconomic—as long as

Congress has a “rational basis” for thinking that permitting such local conduct “would leave a gaping hole”

in its larger regulatory scheme. Ibid.

That reasoning can’t be squared with (A) the Constitution’s original public meaning or (B) this Court’s

precedents, so (C) this Court should grant review and

overrule Raich—or, at minimum, clarify that the holding of Raich doesn’t authorize the home-distilling ban

at issue here.

A. Raich Is Inconsistent with the Original

Public Meaning of the Commerce and

Necessary and Proper Clauses.

As the public understood it at the Founding, the

Commerce Clause gives Congress power over interstate trade and transportation. United States v.

Lopez, 514 U.S. 549, 585–86 (1995) (Thomas, J., concurring) (collecting dictionaries and The Federalist).

The Necessary and Proper Clause permits Congress

to employ means genuinely incidental to executing an

enumerated power. Landor, 146 S. Ct. at 1946–48.

8

Purely local, noneconomic activity—distilling spirits

at home for personal consumption—doesn’t fall in either category.

1. The Commerce Clause grants Congress the

power to “regulate Commerce with foreign Nations,

and among the several States, and with the Indian

Tribes.” U.S. Const. art. I, § 8, cl. 3. As originally understood, “the Commerce Clause authorizes Congress

only ‘to regulate the buying and selling of goods and

services trafficked across state lines.’ ” United States

v. Hemani, 146 S. Ct. 1677, 1695 (2026) (Thomas, J.,

concurring) (quoting Raich, 545 U.S. at 58 (Thomas,

J., dissenting)).

Founding-era dictionary definitions of “commerce” illustrate that the term’s reach was limited to

trade, exchange, commercial intercourse, and transportation. See, e.g., 1 Samuel Johnson, A Dictionary

of the English Language (6th ed. 1785) (“commerce”

means “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”); Nathan Bailey, An Universal Etymological English Dictionary (26th ed. 1789) (“trade or traffick”); Thomas

Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”).

Nor was the original meaning of “intercourse”

much broader. Samuel Johnson defined “intercourse”

as “Commerce; exchange” and “Communication: followed by with.” Johnson, A Dictionary of the English

Language. Both “commerce” and “intercourse” included the transportation, movement, or communication of people and things from one place to another—

as distinct from the production of the items being

9

transported or communicated. See generally Randy

E. Barnett, Jack Balkin’s Interaction Theory of “Commerce,” 2012 U. Ill. L. Rev. 623; see also The Federalist

No. 11, at 71 (Hamilton) (describing interstate commerce as “trade” advanced by the “interchange” of

state productions).1

Debates during the drafting of the Constitution

confirm that “commerce” meant the discrete act of

trade and transportation. For example, Charles

Pinckney proposed to the Philadelphia Convention

that Congress has the power to “establish public institutions, rewards and immunities for the promotion of

agriculture, commerce, trades and manufactures,”

treating “commerce” as a distinct activity from the

others. James Madison, Notes of Debates in the Federal Convention of 1787 478 (1966).

The same was true during ratification. In defending the Constitution’s Commerce power, Hamilton

made the same distinction: he described “commerce”

as “nearly allied” to “the mechanic and manufacturing

arts,” not as encompassing them, and explained that

those arts merely “furnish the materials of mercantile

enterprise and industry.” The Federalist No. 35, at

219–21 (Hamilton).

Use of “commerce” at State ratification conventions tells the same story. See 2 The Debates in the

Several State Conventions on the Adoption of the Federal Constitution 57–58 (Jonathan Elliot ed., 2d ed.

1836) (Thomas Dawes) (distinguishing “agriculture,

commerce, and manufactures” and describing commerce as “our own domestic traffic that passes from

1

All references to The Federalist are to the Jacob E. Cooke

1961 edition.

10

state to state”); see generally Randy E. Barnett, The

Original Meaning of the Commerce Clause, 68 U. Chi.

L. Rev. 101 (2001) (surveying every use of the word

“commerce” at the Convention, in the ratification debates, and in The Federalist); Randy E. Barnett, New

Evidence of the Original Meaning of the Commerce

Clause, 55 Ark. L. Rev. 847 (2003) (surveying every

use of “commerce” in the Pennsylvania Gazette from

1728 to 1800).

The words surrounding “commerce” in the Commerce Clause further clarify—and restrict—the scope

of Congress’s power. “Among the several States” limits the power to exchange, transportation, or intercourse “between the States,” leaving internal trade

within a State beyond Congress’s direct control. See

The Federalist No. 23, at 146–47 (Hamilton) (emphases added); see also The Federalist No. 42, at 283

(Madison) (referring to the power “to regulate the

trade between State and State”) (emphasis added).

The Commerce Clause thus gave Congress no direct dominion over commerce—however broadly or

narrowly it’s defined—that’s wholly intrastate, much

less over purely local, noneconomic activity. The distilling of alcohol at home isn’t commerce and doesn’t

take place between one State and another, so it

doesn’t fall within Congress’s power “to regulate Commerce * * * among the several States.” U.S. Const.

art. I, § 8, cl. 3.

This Court’s early cases recognized as much. In

Gibbons v. Ogden, Chief Justice Marshall explained

that the specification of commerce “among the several

States” in the Clause left outside of Congress’s power

the “completely internal commerce of a State,” which

11

“may be considered as reserved for the State itself.”

22 U.S. (9 Wheat.) 1, 194–95 (1824). That is, the

Clause itself gives Congress “no power of regulation”

nor “direct control” over “internal commerce or domestic trade.” The License Tax Cases, 72 U.S. (5 Wall.)

462, 470–71 (1867).

2. The Necessary and Proper Clause doesn’t enlarge Congress’s “few and defined” federal powers, including its Commerce power. The Federalist No. 45,

at 313 (Madison). Rather, it provides a “limitation on

the means which may be used” to carry into execution

an enumerated power. Gibbons, 22 U.S. at 187 (emphasis added). Such means “shall” be both “necessary” and “proper.” Those are separate and distinct

requirements. Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519, 560 (2012) (opinion of Roberts, C.J.).

By its plain terms, the Necessary and Proper

Clause is “a declaration, for the removal of all uncertainty, that the means of carrying into execution those

[powers] otherwise granted are included in the grant.”

Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234, 247

(1960) (alteration in original) (quoting VI The Writings of James Madison 383 (Gaillard Hunt ed., 1906)).

The Clause preserves the Constitution’s scheme of

limited federal powers by cabining Congress’s lawmaking power to appropriate means directed at carrying “some other identifiable constitutional power” into

execution. Gary Lawson & Patricia B. Granger, The

“Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267,

274–75 (1993).

The original public meaning of “necessary and

proper” at the Founding embraced means that were

12

closely tethered to an enumerated power and weren’t

otherwise prohibited by or inconsistent with the Constitution. See Printz v. United States, 521 U.S. 898,

923–24 (1997); Martin v. Hunter’s Lessee, 14 U.S. (1

Wheat.) 304, 326 (1816).

Contemporary sources illustrate the limited reach

of the language used in the Necessary and Proper

Clause. See generally Randy E. Barnett, The Original

Meaning of the Necessary and Proper Clause, 6 U. Pa.

J. Const. L. 183 (2003) (surveying founding-era

sources). Founding-era legal usage treated “proper”

as marking what belongs to a particular office, authority, or governmental department, and it isn’t “proper”

for a law to infringe or impair a fundamental right.

See Lawson & Granger, 43 Duke L.J. at 291–97. So a

law could be useful, convenient, or even closely related

to a federal end and still fall outside Congress’s proper

authority. See ibid.; see also Randy E. Barnett, Necessary and Proper, 44 UCLA L. Rev. 745, 772–77

(1997).

Even ardent champions of broad federal power

acknowledged the limitations of “necessary and

proper.” While defending the constitutionality of the

First Bank, Alexander Hamilton accepted that the

Necessary and Proper Clause’s reach turned on the

“relation between the measure and the end, between

the nature of the mean employed towards the execution of a power and the object of that power.” Alexander Hamilton, Opinion on the Constitutionality of an

Act to Establish a Bank (Feb. 23, 1791), in 8 The Papers of Alexander Hamilton 104 (Harold C. Syrett ed.,

1965).

13

In McCulloch, Chief Justice Marshall similarly

noted the required means-ends connection and the

Constitution’s limited allocation of authority: Congress can select means “plainly adapted” to an end

“within the scope of the constitution.” 17 U.S. at 421.

But it may not, “under the pretext of executing its

powers,” pass laws for “objects not entrusted to the

government.” Id. at 423. Any such law must be “really calculated to effect any of the objects entrusted to

the government.” Ibid. (emphasis added).

3. Congress’s ability to reach wholly intrastate activity is therefore limited to means that are “necessary

and proper” to carry into execution its enumerated

power over interstate commerce. That is, it extends

only to the extent that regulating intrastate activity

is really calculated to be necessary to the regulation of

interstate “trade or transportation of things or persons” and not an improper intrusion into the reserved

police power of the States. Barnett, 2012 U. Ill. L.

Rev. at 623.

A legislative “act” that reaches further—regulating local activity without the required connection to

interstate commerce—is beyond Congress’s power and

therefore isn’t “proper.” See McCulloch, 17 U.S.

at 423 (“should Congress, under the pretext of executing its powers, pass laws for the accomplishment of

objects not entrusted to the government; it would become the painful duty of this tribunal * * * to say that

such an act was not the law of the land”).

4. In Raich, Congress had made no findings as to

whether regulating home-grown marijuana used for

medical purposes as authorized by state law was es-

14

sential to its regulation of interstate commerce in marijuana. 545 U.S. at 21. Instead, the Court applied

rational basis scrutiny to permit Congress to regulate

wholly local, intrastate production, possession, and

consumption whenever it might have concluded that

exempting a “class of activity would undercut the regulation of the interstate market in that commodity.”

Id. at 18. That expansive construction of the Commerce power—governed by any hypothetical or conceivable rational basis scrutiny—is flatly inconsistent

with the original public meaning of the Necessary and

Proper Clause. McCulloch, 17 U.S. at 423 (Congress

may not “under the pretext of executing its powers,

pass laws for the accomplishment of objects not entrusted to the government”); see generally Barnett, 55

Ark. L. Rev. 847.

The Constitution doesn’t “confer on Congress a

general ‘police power’ over the Nation.” Raich, 545

U.S. at 65 (Thomas, J., dissenting). Yet that’s precisely the power Raich grants—so long as Congress

clears the low bar of a judicially imaginable “rational

basis,” it may exercise expansive power to accomplish

its regulatory objectives. Id. at 22 (majority).

The Court in Raich thus erred in two ways. First,

by adopting a definition of “economic” that allowed it

to reach personal activities too far removed from its

power to regulate commerce among the several

States. Second, by adopting a standard of review of

the claim that it is “essential” to reach such local activity that allows Congress to improperly intrude into

the police powers of the States. These two constitutional errors undermine our federal structure and

must eventually be corrected—the sooner, the better.

15

B. Raich Is Also Inconsistent with This

Court’s Pre- and Post-Raich Decisions.

Raich conflicts with not only the original public

meaning of the Commerce and Necessary and Proper

Clauses but also this Court’s decisions that pre- and

post-date Raich. In the two decades since Raich was

decided, this Court has repeatedly narrowed Raich’s

expansive conception of federal power. Overruling

Raich ensures the Commerce power remains within

the confines of both the original public meaning and

two centuries of this Court’s precedents.

This Court’s early decisions held that “certain categories of activity such as ‘production,’ ‘manufacturing,’ and ‘mining’ were within the province of state

governments”—and were therefore beyond Congress’s

Commerce power. Lopez, 514 U.S. at 554.

In United States v. Dewitt, for example—in an

opinion by Chief Justice Chase—the Court held that

a federal criminal ban on the intrastate sale of certain

illuminating oils was a “police regulation” reserved to

the States—beyond Congress’s Commerce power and

untethered to its Taxing power. 76 U.S. (9 Wall.) 41,

45 (1869). The Fifth Circuit correctly relied on Dewitt

to reject “Congress’s attempt to ban one product in order to further taxation of another.” McNutt, 173 F.4th

at 219–20 (citing Dewitt, 76 U.S. at 44–45).

Although later cases “ushered in an era of Commerce Clause jurisprudence that greatly expanded

the previously defined authority of Congress under

that Clause,” this Court repeatedly confirmed that the

Commerce Clause power “is subject to outer limits.”

Lopez, 514 U.S. at 556–57. The Court never went so

16

far as to hold that production itself qualifies as “commerce.” See id. at 628 (Breyer, J., dissenting). Instead, it employed the Necessary and Proper Clause

to allow Congress to regulate only intrastate activity

that had a substantial effect on interstate commerce—

on the theory that such regulation was a necessary

means of exercising Congress’s Commerce power. Id.

at 557 (majority).

As broad as the substantial-effects inquiry effectuating the “necessary” prong of the Necessary and

Proper Clause might seem, this Court made clear in

Lopez that it isn’t limitless. 514 U.S. at 557. Lopez

involved a federal prohibition on carrying guns in

school zones. See id. at 551. The Gun-Free School

Zones Act “by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however

broadly one might define those terms.” Id. at 561.

Sustaining it would have required the Court “to pile

inference upon inference in a manner that would bid

fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States”—which the Court refused to do.

Id. at 567.

Lopez—and later, United States v. Morrison, 529

U.S. 598 (2000)—enforced the Commerce power’s

outer limits with a judicially administrable line. This

Court would uphold regulation of intrastate activity

under the substantial-effects rubric only where that

local activity is economic in nature, as it was in Wickard v. Filburn, 317 U.S. 111 (1942).

Banning gun possession near schools failed that

test because it was “in no sense an economic activity

17

that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Lopez,

514 U.S. at 567. So did preventing gender-motivated

violence: Congress can’t “regulate noneconomic, violent criminal conduct based solely on that conduct’s

aggregate effect on interstate commerce.” Morrison,

529 U.S. at 617.

That is, by requiring that these activities be economic in nature, Lopez and Morrison’s gloss on the

substantial-effects test provides “some assurance”

that regulating intrastate conduct “is a truly necessary means to effectuate the permissible end of regulating interstate commerce.” Randy E. Barnett, Foreword: Limiting Raich, 9 Lewis & Clark L. Rev. 743,

748 (2005).

The Court recently reaffirmed this fundamental

principle in Landor. There, the Court stated that the

Necessary and Proper Clause “authorizes Congress to

employ ‘necessary and proper’ means for ‘carrying into

Execution’ its other enumerated powers.” 146 S. Ct.

at 1946 (quoting U.S. Const. art. I, § 8, cl. 18). That

is, “the Clause allows Congress to enact laws ‘incidental to those powers which are expressly given.’ ”

Ibid. (quoting McCulloch, 17 U.S. at 411).

As Landor clarified, the Necessary-and-Proper inquiry is whether the means is incidental to “Congress’s constitutionally enumerated power” itself—

not whether the means conveniently serves the purpose or goals of a statute enacted under that power.

146 S. Ct. at 1946. The enumerated power at issue in

Landor was the Spending power, but the principle applies with equal force to the Commerce power.

18

So under the “necessary” prong of the Necessary

and Proper Clause, the means of intrastate regulation

must be “plainly adapted” and “really calculated to effect” a legitimate end within an enumerated power,

McCulloch, 17 U.S. at 421, 423—here, the regulation

of interstate trade in spirits. In addition, the intrastate regulation must also be “proper”—that is, consistent with the Constitution’s text, history, and tradition. See Part II.A.

Raich, however, eschewed those well-recognized

limits. Instead, it adopted an expansive definition of

economic activity it found in Webster’s Third New International Dictionary 720 (1966), which embraced

“the production, distribution, and consumption of

commodities.” 545 U.S. at 25–26. This definition

sweeps far beyond true economic activity and reaches

conduct that is not economic at all—possessing and

consuming any homemade commodity, for instance.

That can’t be right. “Economic” activity, properly understood in this context, is activity undertaken for

gain. Under that definition, which is consistent with

this Court’s pre- and post-Raich decisions, home distilling for personal consumption clearly isn’t an economic activity.

With Lopez and Morrison’s economic requirement

erroneously expanded in this way, the substantial-effects doctrine allows Congress to exceed its powers under the original meaning of the Commerce and Necessary and Proper Clauses and allows it to intrude into

the police powers of the States. So too does giving

Congress unfettered discretion to decide whether its

broader regulation of interstate commerce would be

undercut if it can’t prohibit some local noneconomic

activity. See Morrison, 529 U.S. at 614 (“[W]hether

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particular operations affect interstate commerce sufficiently to come under the constitutional power of

Congress to regulate them is ultimately a judicial rather than a legislative question.”) (quoting Lopez, 514

U.S. at 557 n.2).

Any such interpretation is therefore “improper.”

Compare NFIB, 567 U.S. at 560 (opinion of Roberts,

C.J.) (“Even if the individual mandate is ‘necessary’ to

the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those

reforms effective.”), with Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. &

Liberty 581, 621–34 (2010) (advancing the limitingprinciple analysis NFIB ultimately adopted); see also

Morrison, 529 U.S. at 618–19 (“we always have rejected readings of the Commerce Clause and the scope

of federal power that would permit Congress to exercise a police power”) (quoting Lopez, 514 U.S. at 584–

85 (Thomas, J., concurring)); United States v. Kebodeaux, 570 U.S. 387, 402 (2013) (Roberts, C.J., concurring in the judgment) (federal police power “does

not exist”).

This Court has time and again affirmed that Congress has no “plenary police power” to regulate local,

noneconomic activity. Morrison, 529 U.S. at 618

(quoting Lopez, 514 U.S. at 566). Raich’s two errors

represent an unprincipled departure. This Court’s intervention is needed to confirm Raich is inconsistent

with this Court’s Commerce Clause decisions. Its expansive understanding of “economic” activity twists

the substantial-effects doctrine beyond incidental

powers of the Commerce Clause and thwarts the original public meaning of the Commerce and Necessary

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and Proper Clauses. So too does its deference to Congress’s decision whether reaching local activity is “essential” to its regulation of interstate commerce.

C. At Minimum, the Court Should Clarify

That Raich Doesn’t Permit Congress to

Regulate Home Distilling for Personal

Consumption—A Purely Local, Noneconomic Activity.

If this Court doesn’t overrule Raich, it should nevertheless clarify that Raich doesn’t extend to the federal prohibition here. Raich turned on the argument

that (a) marijuana was “a fungible commodity for

which there is an established, albeit illegal, interstate

market”; (b) Congress had “undertaken to extinguish”

this market altogether; so (c) allowing any local production whatsoever would necessarily undercut the

interstate prohibition itself. 545 U.S. at 18; id. at 39–

40 (Scalia, J., concurring in the judgment). But distilling, possessing, and consuming spirits is a far cry

from growing, possessing, and consuming marijuana—or at least it was two decades ago when Raich

was decided.

For starters, there’s an entirely lawful and active

interstate market for distilled spirits. Far from seeking to extinguish distilled spirits, Congress wants to

tax them. The government seeks only to extinguish

home distilling—purely local, noneconomic activity—

on the theory that the activity evades this taxing

scheme. And unlike Wickard, there’s no attempt to

regulate the total amount of product on the market or

bar it altogether.

21

The Sixth Circuit reasoned that the ban nonetheless protects revenue—purportedly by “shift[ing] consumption” from potentially untaxed home-distilled

spirits to taxed, commercially produced spirits. Pet.

App. 15. That reasoning proves too much—as this

Court confirmed more than 150 years ago. See Dewitt,

76 U.S. at 44–45 (Congress can’t use Taxing power to

bar sale of low-flashpoint lighting oils); see also

McNutt, 173 F.4th at 219–20 (invoking Dewitt).

Every untaxed activity in the home—cooking, gardening, sewing—shifts demand away from some taxed

market substitute. If that suffices to permit federal

regulation (and prohibition), then buried in the Taxing power is a general police power over domestic life—

the very power this Court has always denied Congress

under the Commerce Clause. See Part II.B. That “expansion” of the Commerce power isn’t “proper.” NFIB,

567 U.S. at 560 (opinion of Roberts, C.J.).

So, at minimum, the Court should distinguish

Raich from prohibitions like the one at issue here.

That’s because Raich’s rationale doesn’t apply to a

federal regulatory scheme that permits (and taxes) interstate commerce, rather than prohibits it. The statute in Raich outlawed a commodity market from manufacture through distribution to possession, so exempting home growers arguably left a hole in a

scheme regulating economic activity. Where Congress

permits, licenses, and taxes the market, exempting

purely personal home production leaves no Raichstyle gap. Congress’s own scheme proves it, since

home beer and wine production is exempt from the excise tax altogether. 26 U.S.C. §§ 5042(a)(2), 5053(e).

Raich’s expansive reasoning therefore doesn’t reach

this case.

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***

The Constitution’s original public meaning gives

Congress no power over purely local, noneconomic activity like distilling spirits at home for personal consumption. And the Necessary and Proper Clause permits Congress to regulate intrastate activity only insofar as doing so is both necessary and genuinely incidental to regulating interstate trade.

The government’s theory is that, under Raich,

Congress may criminalize home production of anything with its regulatory power over an interstate

market. That theory conflicts with both the Constitution’s original public meaning and this Court’s precedents. It confirms that Raich was wrong when it was

decided and is wrong today. Nothing in the Constitution—or this Court’s other precedents for that matter—supports such an expansive (and limitless) view

of Congress’s Commerce power. It’s also wrong that

Congress may prohibit any local activity that conflicts

with its scheme of taxation—and for the same reason.

Resolving the taxing question alone only half answers the ultimate question: whether Congress can

ban home distilling. The Court should take on the ban

in full force rather than hold it pending McNutt, as

the government now requests. Whether the Court

overrules Raich or clarifies that its holding has no

bearing here, the petition presents important constitutional questions that this Court—and only this

Court—can and should resolve now.

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CONCLUSION

For these reasons, the Court should grant the petition for a writ of certiorari.

Respectfully submitted.

BRADLEY G. HUBBARD

Counsel of Record

BENJAMIN D. WILSON

BRYSTON C. GALLEGOS

JAIME R. BARRIOS

JEFFREY D. GURLEY

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

bhubbard@gibsondunn.com

Counsel for Amicus Curiae

August 20, 2026