FEMALE_1: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your host, Nia Rogers, Public Affairs Librarian and Dr. John Aughenbaugh, political science professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm really, really good. How are you?
J. Aughenbaugh: Well, I'm thinking about replacing my morning cup of coffee. Well, let's truth be told my second mug of coffee with some moonshine. I figured that would bring a sparkle to my day. What do you think?
N. Rodgers: Or strip paint off your walls. I've had it where it could do both. 'Cause in the long Southern proud tradition of moonshine, I have sampled over the years, a few and some of them are smooth and sweet and lovely and something that you would want to drink more of, and some of them, you think to yourself, don't throw up in front of this person, whoever gave it to you because that's an insult. But you can feel your hair falling out.
J. Aughenbaugh: Yeah, with some moonshine, you'd want to keep away from open flame.
N. Rodgers: Your breath has now become, you could, I suppose be like a human torch kind of thing.
J. Aughenbaugh: Some moonshine has catalytic elements, okay?
N. Rodgers: Yes.
J. Aughenbaugh: The reason why listeners, we have started this episode with some fun and frivolity in regards to the, shall we say, attributes of moonshine is that we're going to be looking at a series of two lower federal court rulings concerning a law that was passed after the civil war that has recently been challenged, and there's a conflict between two lower federal courts.
N. Rodgers: Which means it's going to the supremes.
J. Aughenbaugh: It increases the likelihood that the supreme court's going to want to take a look at this and it just caught our fancy because as Nia just pointed out, again, our long term listeners are aware of this. Maybe our newer listeners are not. Nia and I both grew up in rural United States in Nia's case, North Carolina, in my case, Pennsylvania and there are some practices in Rural America that perhaps urbanites may have heard of, but never experienced. We experienced them. In my case, my great grandfather actually produced his own moonshine in his basement, and in fact, the first alcohol I ever tasted in my life was some strawberry moonshine that he had made that had been sitting in his basement, according to him for well over a dozen years. He told me to sip it, I did, and it still burned my throat, and I was coughing probably for like a half hour afterwards.
N. Rodgers: In my case, it was not my family that made it, but it was neighbors. Because it is a form of trade for some people. My family were not a big family of drinkers, but I personally was a drinker and
wanted to try everything and, man, that stuff will burn the hair right out of your nose. It'll clear you sinuses. this thing where people are like, buy the jalapeno, I'm like, No, thanks. I've already done that in my life.
J. Aughenbaugh: If you have any build up in your throat in your esophagus.
N. Rodgers: It'll take care of it.
J. Aughenbaugh: Yeah. It will strip away any kind of debris, et cetera.
N. Rodgers: Part of that is because it is something like, what, 8 billion proof or something. Like, it is not.
J. Aughenbaugh: It is very sour.
N. Rodgers: Because it is unregulated, it could be some people make their stronger than others. Some batches are stronger than others, there are a lot of things that make that depend, whereas when you have professional alcohols, they are made in such a way that one, they are consistent. The absolute vodka that you buy, bottle 1 and bottle 650 taste the same. They're made in a consistent way because distilleries have to meet certain regulations and they have to distill to a certain alcohol level. Whereas moonshiners can make it however they want to make it because they are, in fact, breaking the law.
J. Aughenbaugh: Yes. To your point, in rural parts of the United States, moonshine is a form of currency, so it was not unusual when I began to do work and chores for my great grandfather to where he would send me to neighbors with a jar of his moonshine to go ahead and pay for things that his neighbors did for him.
N. Rodgers: They help you put up your barn, they help you do whatever. Help you bring in a crop, and you can pay in that way, partially.
J. Aughenbaugh: So that's what we're going to take a look at in today's episode, in part because when we saw the subject of the court case.
N. Rodgers: We were pretty amused.
J. Aughenbaugh: Yeah, we were quite amused.
N. Rodgers: We're children, so we're sharing that amusement with you.
J. Aughenbaugh: We can be.
N. Rodgers: We'd like to think we have a grown up podcast, but occasionally, we have a totally childish podcast.
J. Aughenbaugh: Yes.
N. Rodgers: As you all heard last week, we have feelings about license plates, as you'll hear in the future, we have feelings about other things. But this was one of those ones and it's also sort of a precursor to a case that's also coming up with bad spaniels.
J. Aughenbaugh: Yeah, we're going to revisit the copyright dispute between Jack Daniels and the maker of dog chew toys.
N. Rodgers: When we can get Katherine back with us, we'll have that. But can I just say, though, that part of what the appeal for moonshiners is is sometimes they can make it taste like some pretty funky things like they can make blueberry moonshine, or they can make these flavors that can't get in the stores because not enough people want that or not enough people know they want that till they've had it or whatever. So there's something kind of appealing about people who want to be able to distill at home and make small batches of something that's flavored the way they really like it. There's no such thing as ginger vodka in the real world, I don't think. There might be now. But there's ginger moonshine, so that's another sort of attractant.
J. Aughenbaugh: First, let's go ahead and get the, shall we say, the specifics. The 40th Congress in 1868 passed a law. This is Section 12, and it basically said that no person shall use any still, boiler or other vessel for the purpose of distilling in any dwelling house, nor in a shed yard or enclosure connected with any dwelling house, nor on board of any vessel or boat or in any building or on premises where lager beer, ale, porter or other fermented liquors, vinegar, or ether are manufactured or produced or where sugars or syrups are refined. That was in 1868. It basically covers pretty much any place where, at that time.
N. Rodgers: You could exist. It didn't cover the moon because we hadn't gone to the moon yet.
J. Aughenbaugh: Yeah. Now, interestingly enough, that law was modified in 1979 for beer and wine.
N. Rodgers: You can brew your own beer at home in small quantities.
J. Aughenbaugh: That's right.
N. Rodgers: For I believe it's for personal consumption, you can't brew at home to sell out in markets or anything. Like, you can't brew that amount at home, but you can brew your own for your own personal consumption.
J. Aughenbaugh: But it was not revised for distilled spirits. So it's probably good, Nia, for us to differentiate for our listeners, beer and wine are not distilled. Liquor, like moonshine is. It's fermented over a period of time and distilled, whereas beer and wine are not necessarily distilled.
N. Rodgers: Right. They tend to be brewed.
J. Aughenbaugh: Yeah, they tend to be brewed. That brings us to the court case that caught our interest. The court case was or is, excuse me, McNutt versus the Department of Justice.
N. Rodgers: I want McNutt to win because he's got a great name.
J. Aughenbaugh: Yeah. Again, this podcast, okay?
N. Rodgers: We love names.
J. Aughenbaugh: Yeah, we love names. The Fifth Circuit Court of Appeals declared that this federal ban on home distilling exceeded Congress's powers. The group that was bringing the lawsuit is the nonprofit Hobby Distillers Association on behalf of four of its, and I didn't know it had this many members. This is a nonprofit interest group that has 1,300 members. That's a lot of people distilling a lot of booze. The Fifth Circuit Court of Appeals in April of this year, declared that this federal law, again, this was passed during the reconstruction after the Civil War Nia, this is a law that's been on the books for 150 plus years, exceeded Congress's authority.The lawsuit was brought by a nonprofit, the Hobby Distillers Association. I like how they stuck the word hobby into this, I just knew this is a hobby.
N. Rodgers: Yeah. Well, and they don't want to imply they're supporting it as business, which would be a whole different thing and taxable and all that other. They're like, no, I just want to be able to make a little vodka in my bathtub. It's gin, but anyway.
J. Aughenbaugh: Okay. The Distillers Association argued that people should be free to distill spirits at home, whether as a hobby or for personal consumption, including and this is the part that I got to admit, as Nia pointed out a few moments ago, this is how juvenile, I don't know if juvenile. This is what caught my attention. Including to create an apple pie Vodka recipe.
N. Rodgers: Tell me that wouldn't be good.
J. Aughenbaugh: As somebody who believes that pie at any time during the day is a good thing, and I am that person, I'm like, I wonder what apple pie vodka actually tastes like.
N. Rodgers: I should try some of that. By the way, the Hobby Distillers Association has 1,300 members. It's not an insignificant. It's not just five weirdos in a garage somewhere.
J. Aughenbaugh: This is a trade association. We political scientists like to catalog and put groups into categories, as an interest group, this would be known as a trade association. Because it's a trade, anyways.
N. Rodgers: No, wait. So what happened to people who under the old law, who did it? What would happen if you got caught moonshining?
J. Aughenbaugh: You could, if you were convicted, get five years in prison and a $10,000 fine.
N. Rodgers: $10,000 fine 150 years ago?
J. Aughenbaugh: Yes. You might as well just go ahead.
N. Rodgers: Could you even pay that or would you just say, take everything and I'll just work hard labor for the rest of my life?
J. Aughenbaugh: If you got that fine, you basically subjected multiple generations of your family to being in debt, because $10,000 back then. that would basically cover easily a decade, a decade and a half of wealth.
N. Rodgers: That's a big fine.
J. Aughenbaugh: Now, for those of you who are wondering, the law was passed to basically stop liquor tax evasion. Mind you, this was before prohibition. So basically what they were trying to avoid was people not going to or making alcohol that would be sold in an attempt to avoid paying taxes. They figured if we just do a ban, and make the punishment severe enough, then people will be encouraged to participate in the market. They would actually, take their alcohol, and they would get it regulated and once their business was identified by the tax offices, then they would actually pay their taxes. Now, the Fifth Circuit Court of Appeals, and it was a unanimous decision.
N. Rodgers: Cut out again.
J. Aughenbaugh: Yeah, I noticed this time.
N. Rodgers: Yeah, I don't know what's going on. Let me see. We're still recording.
J. Aughenbaugh: The Fifth Circuit Court of Appeals, in a majority opinion written by Judge Edith Jones, said that the ban actually reduced tax revenue because it prevented distilling in the first place.
N. Rodgers: If people were allowed to distill, then you could tax it, like it's the weed argument. If I let you grow and sell weed, then I can tax it and regulate it and make more money off of it, than if you do it on the sly, where you're going to grow it and sell it anyway, but I'm not getting any of the revenue stream.
J. Aughenbaugh: In her argument is basically, as you just pointed out, Nia, the justification for legalizing marijuana, at least for some people, which is, we know that people are going to grow it, sell it, and use it. Why not legalize it and tax it?
N. Rodgers: Make money.
J. Aughenbaugh: Make money. Okay.
N. Rodgers: It's the argument that Nevada has used for brothels; I was going to say for intimate relations, which is, we know people are going to engage in intimate relations with each other. Why don't we set up some regulatory framework so that we can make sure everybody's healthy and safe and tax it?
J. Aughenbaugh: Make some money. Yes. Now, that's the economics part of her majority opinion. The constitutional part is, she basically just went ahead and said, under the logic of this law. Congress, per its taxing authority, could basically ban any behavior that it wanted to criminalize. Because again, the logic was the reason why these people should be banned from distilling at home is that we want to avoid people cheating on their taxes. She said, Well, if that's the case, where's the endpoint? This is the infamous slippery slope argument in constitutional law. At what point?
N. Rodgers: I love the phrase that you have in here, which is: could criminalize virtually any in-home activity that might escape notice of tax collectors, including remote work and home-based businesses. I like that she's like. This could go off the charts in a really fast way.
J. Aughenbaugh: Way. Yes. Think about it. Listeners, before Nia and I began our recording this morning, we were doing our usual, so what's going on and what are we going to be doing next with the podcast. While we were talking, Nia, okay, you were crocheting. Nia, what do you crochet? What are they?
N. Rodgers: I crochet bookworms. They're bookmarks.
J. Aughenbaugh: Now, let's just say, for instance, Nia, enough people see your bookworms, and they're like, Hey, that's really cool. That's really attractive. Hey, could you do one for me? Then all of a sudden, Nia, you're just like, well, I do enough of these. I might want to go ahead and start selling them. Now, you're not going to go ahead and do so many of these to where this ends up becoming your primary form of income. But that's Judge Jones' argument, which is you're doing stuff at home. Potentially, you could do enough of those bookworms to where you're like, This could augment my satisfactory VCU salary. I was going to use a different adjective, but let's just go ahead and be positive, satisfactory VCU salary. But you're less likely to go ahead and want to do this and have it incorporated as a business and thus pay taxes because of this federal law. Think about the impact it could have on other home-based entrepreneurs like you.
N. Rodgers: Well, it also becomes a matter of scale. This is crushing the scale of what you're talking about. Very few people at home are making, in my case, 10,000 bookworms a day. That's not a thing I'm doing. Very few home distillers are making hundreds of bottles of alcohol a day. I have a friend who brews, and he does like, what, 12 bottles at a time.
J. Aughenbaugh: It's batch work. You do a batch, and then you come back to it a month or two later.
N. Rodgers: You don't make it every day. You don't make it all the time.
J. Aughenbaugh: As she points out, without some limiting principle, under the federal government's argument, all this behavior could be criminalized, and it would certainly infringe upon a well-established constitutional, if you will, doctrine known as the police power. Government.
N. Rodgers: It's a state thing.
J. Aughenbaugh: It's a state thing rooted in the 10th Amendment, because there is nowhere in the US Constitution that it says the federal government can go ahead and regulate intrastate commerce, stuff that's done within a state.
N. Rodgers: We don't want them to have that police power, because enforcing of that means guys with guns on your streets in every small town. No thanks.
J. Aughenbaugh: One of the attorneys hired by the Hobby Distillers Association, a guy by the name of Andrew Grossman, who actually argued the nonprofit's appeal. Called the decision, quote, an important victory for individual liberty. They let the plaintiffs pursue their passion to distill fine beverages in their homes. But for me, here's the mo.
N. Rodgers: I just say he's stretching it when he says fine beverages? A lot of these are what I would consider fine. To each their own?
J. Aughenbaugh: One person's trash is another person's treasure. You froze, Nia. Hello?
N. Rodgers: I don't know what I'm doing wrong here.
J. Aughenbaugh: It may not be anything you're doing. It could just be an unreliable Internet connection. Where we left off?
N. Rodgers: I'm not sure I would call these fine.
J. Aughenbaugh: Yes.
N. Rodgers: Beverages. But to each their own, if you want to make an apple pie vodka, and you want to share it with me and Aughie, we would be intrigued.
J. Aughenbaugh: Well, there's an adage that always comes to mind. One person's trash is another man's another person's treasure.
N. Rodgers: I don't want to yuck your yum. Yes. Your yum is your yum.
J. Aughenbaugh: But he's got a quote that I just loved. That he said after the decision. "I look forward to sampling their output."
N. Rodgers: Yes, we like Andrew Grossman. I like that he's like, I'm looking forward to tasting some of this stuff. But I also think there's got to be some pressure here. There's got to be this can't just be, we're just going to overturn this thing and Tall.
J. Aughenbaugh: Before we get to it, I want to touch upon something Nia, you just mentioned. One of the reasons why I think many people today are skeptical of this law is that the federal government's basically making an argument that they made starting in the 1930s. Now, this case is about the federal government's taxing power. But in the 1930s, Nia, as you're well aware, and you're tired of hearing, the United States federal government began to justify a whole bunch of New Deal regulations on the grounds that the Commerce Clause gave them the authority to regulate even local individual behavior. As we've discussed in previous podcast episodes, in the infamous Supreme Court decision of Wickard versus Filburn, a guy who grew extra wheat on his farm to feed his livestock and his family violated the Agricultural Adjustment Act, and the United States Supreme Court said that law was perfectly constitutional.
N. Rodgers: He won that case.
J. Aughenbaugh: If a whole bunch of other wheat farmers did what Roscoe Filburn did, then the wheat market would suffer.
N. Rodgers: If all your friends jumped off a cliff, would you jump off a cliff? I hate that case, but I understand it.
J. Aughenbaugh: And a more recent Supreme Court ruling, since we talked about marijuana previously. Gonzales v Raich, which was decided in 2005, when the Supreme Court said that the federal government's drug laws could apply to grandmas growing their own pot for medicinal reasons. Why?
Because if a whole bunch of other grandmas who need weed for medicinal purposes did this, this would have a negative impact on the black market for growing and selling weed.
N. Rodgers: Again, scare me. But yes.
J. Aughenbaugh: Now, before we get to what I think might happen if the Supreme Court takes this case, as we alluded to, a different federal appeals court also took a look at the constitutionality of this law, and they did later in the month of April. April was a big time month for the federal courts taking a look at moonshine. None of this heavy, national policy stuff. Let's just get down to the brass tacks of Moonshine. The Sixth Circuit Court of Appeals.
N. Rodgers: It's the spring. The spring brings, you know?
J. Aughenbaugh: Yes. This other case is entitled Reem versus the Department of Treasury. The Sixth Circuit Court of Appeals actually upheld the 1868 federal law banning home alcohol distilleries.
N. Rodgers: A conflict has emerged.
J. Aughenbaugh: Yes. Here, the Sixth Circuit Court of Appeals said that it was justified as a combination of the Congress's tax power and the Necessary and Proper Clause. Now, the Sixth Circuit did concede that the tax power that Congress has in the Constitution is not enough to justify a complete ban. However, they said Congress's ability to create and enforce taxing is aided by the ban because they want to encourage people to go through the process of getting registered, incorporating their business, and actually officially paying taxes. They said the law was necessary and proper to facilitate Congress' taxing of alcohol and spirits that may have an impact on the nation's alcohol market. It's very similar to the logic in regards to the Commerce Clause.
N. Rodgers: Can I just say that you know what this feels like to me?
J. Aughenbaugh: Yes.
N. Rodgers: It feels like to me that the government wants to avoid the competition with ABC stores.
J. Aughenbaugh: I was wondering about that, Nia, because a lot of states make a whole bunch of money. Either running liquor stores in their state, which is what my home state of Pennsylvania does. That's what the state that we live in, Virginia, does. They run liquor stores. Other states, like Maryland, they actually franchise. They sell franchises to private liquor stores, but it still makes a whole bunch of money for the state.
N. Rodgers: What brands do is they will give certain states a small number of something and say, this is a special, whatever, and the ABC stores get to have a lottery, and it draws more people in.
J. Aughenbaugh: Yes.
N. Rodgers: It's called Alcoholic Beverage Control, by the way, ABC stands for Alcoholic Beverage Control. It's also the theory that they are going to keep what we used to call, colloquially, rotgut from appearing on the shelves and killing you. Because there are certain alcohols that you may or may not want widespread usage of because of their danger. Aggie and I can speak to the dangers of Everclear,
which was something that we had in our youth that I don't even know if they sell Everclear anymore, but if they do, holy cow, I hope they don't sell it often because that stuff will kill you. Well, that which does not kill you makes you stronger. But anyway, so if the sixth court says, no, we're upholding the ban, and the fifth court says, No, this isn't working, doesn't that mean that the Supremes are likely to take that case so that they can settle it between the circuits?
J. Aughenbaugh: One of the variables that increases the likelihood a case will get to the Supreme Court is if the lower courts are in disagreement because some of the justices are acutely aware that it's not appropriate for the residents of one part of the country have to follow one interpretation of the Constitution, whereas other residents are just like, Hey, I can go ahead and distill as much moonshine and apple pie flavored vodka to my heart's content.
N. Rodgers: We're not saying that all 1,300 people would move to a place where they were allowed to do it, but it would certainly make that move more attractive. If you could engage in your hobby freely in one place versus another. Can you remind listeners? The Fifth Court is which one? Fifth Circuit is which one?
J. Aughenbaugh: Texas, Louisiana, Mississippi. Sixth covers the upper Midwest. It's got Illinois, Indiana.
N. Rodgers: Interesting.
J. Aughenbaugh: Now, interestingly enough, both of those federal appeals courts, a majority of their judges have been appointed by Republican presidents. The fact that they had different interpretations, was pretty fascinating to me. Now, Nia, let's just spend a few moments hypothesizing. Let's say the Supreme Court takes the case. To me, it will be fascinating to see how the conservatives on the court look at this law. It would shock me if the three liberals went ahead and said, the federal government does not have this authority, because basically, since the late 1930s, liberals on the Supreme Court have tended to support the federal government having broad economic power. They were the ones that pushed for a broad reading of the Commerce Clause. They are the ones that argue that, for instance, the Affordable Care Act case, NFIB versus Sebelius, Liberals were like, of course, the federal government can force people who don't want to buy health insurance to actually purchase health insurance. This is a no brainer. But to me, what will be fascinating are the conservatives. On one hand, I could easily see Thomas, Alito and Gorsuch saying, the United States Congress has no public health policing authority to regulate alcohol. That per the 21st amendment which repealed prohibition, which level of government gets to decide the sale, distribution, regulation of alcohol? States, since these are people who are distilling at home.
N. Rodgers: It's a state policing power issue. State taxing state policing, that is not up to the federal government.
J. Aughenbaugh: They have shown no intent to go ahead and sell their apple pie flavored vodka across state lines.
N. Rodgers: If they do, then it becomes a different issue.
J. Aughenbaugh: Yes.
N. Rodgers: At that point, it is a federal issue, but until then.
J. Aughenbaugh: Again, this law is pretty clear. It's not that the alcohol might be sold or cross state lines. It bans you even making it in a whole bunch of places that are very local. You're making moonshine in your shed. I'm sorry.
N. Rodgers: In your yard. You know what that law reads like? That law reads like Sam-I-Am. I will not eat eggs in a boat. I will not eat eggs with a goat. When you were reading all the things, I was like, this sounds a lot like Sam, all the prohibitions where he will not eat green eggs and ham. You can't make it on a boat. You can't make it in your yard. You can't make it in your basement. You can't make it in your attic. They tried to cover every conceivable thing so that somebody can say, well, you didn't say I couldn't have. It's like the pet policy and the dorms used to say you can't have a cat or a dog. Then students showed up with ferrets, snakes and canaries and stuff. They were like, you can't have any animal, any living thing. No, unless it's a service animal. But it's one where you're trying to close all of the loopholes that anybody can think of.
J. Aughenbaugh: That's hilarious. It reads like an unpublished Dr. Seuss's book.
N. Rodgers: Yes.
J. Aughenbaugh: He was working on it, and then he went ahead and said I'm not entirely sure this is for kids.
N. Rodgers: You may not distill in a boat. You may not distill in a yard. You may not distill in a house. You may not distill in a barn. You like it's a hole. I like that it tried to cover as much as it could because it knew people would say, because, frankly, humans have been ruing/distilling/, whatever you want to call it, alcohols since the first person realized how you can make alcohol, since the first product where if you left it too long, it turned into something else and you're like it tastes pretty good.
J. Aughenbaugh: Great.
N. Rodgers: It's a little trippy. I like it. It tells you something when the government tries to ban what I think of as a human thing that we do. You know what I mean?
J. Aughenbaugh: You got to think that probably some of the members of the Hobby Distillers Association, for some of them, how can I put this? Part of the appeal of distilling at home, is more than just the fact that I want to see if I can go ahead and make apple pie flavored vodka. Part of the appeal is and a number of us have this mentality. I own up to it. I have this mentality. If somebody says, Aughie, you can't do something, I'm like well.
N. Rodgers: I know you did not just say that to me. I know you didn't just tell me I can't. I am an American, and I can do that if I darn well please.
J. Aughenbaugh: Please. But going back to the court analysis, listeners to conclude our episode.
N. Rodgers: The others, what do you think that the Roberts, Kavanaugh, Coney Barrett, middle third, because we have the steep thirds on either end we've talked about before with the court? The court has extreme on one side and extreme on the other and you get the three people. I wouldn't say they're in the middle because they're still conservative, but they're not Thomas, Alito, Gorsuch conservative.
J. Aughenbaugh: Gorsuch like.
N. Rodgers: They're a little less conservative than that. What do you think they're going to do?
J. Aughenbaugh: I think this is going to be fascinating in regards to Roberts, because listeners, Roberts wrote the majority opinion in NFIB to uphold the constitutionality of the Affordable Care Act. He did it based on Congress' taxing authority, because though it's no longer enforced, the individual mandate was enforced through your taxes. Because if you didn't buy health insurance, the IRS could impose a penalty on you. Likewise, I wonder how far Roberts is willing to go ahead and extend that logic to an outright ban on behavior. If he's willing to go there, can he pick up Kavanaugh and Coney Barrett for that ride? Because if he can, the federal law is going down. Because I can tell you right now, Thomas, Alito and Gorsuch are like, no, Congress has limited authority and being able to tax an economic transaction is not the same thing as being able to ban it, which is what this law does. Which level of government gets to ban individual's behavior? States because they have proof.
N. Rodgers: States, because they are the ones that can enforce it.
J. Aughenbaugh: That's right and they have police power, and they can do this because of public health and safety. To me, that's going to be the fascinating group to watch, particularly Roberts.
N. Rodgers: You put in your notes that you thought that they might ask for a briefing under Commerce Clause, as well as under the taxing power. We want to hear both layers of this argument. I'm interested to see where it goes in terms of regulating personal actions. This brings back those arguments about the nanny state.
J. Aughenbaugh: Yes.
N. Rodgers: Is the federal government acting in a parental aspect of no, you shouldn't do this because you just shouldn't do this? If you want to make rot gut moonshine and then drink it and kill yourself with it, I'm not sure that the state or the federal government should be allowed to stop you from doing that. That's a personal choice you're making.
J. Aughenbaugh: Well, beyond that, that's fascinating you bring that up, because if the Supreme Court decides to take either or both of those cases, and tell the parties, we want you to respond to both, does the federal government have the taxing authority to do this, or does it have the authority under the Commerce Clause? It almost suggests to me that some of the justices might want to revisit Gonzales versus Raich and Wickard versus Filburn. To me, that will be fascinating. If I'm one of the three liberals on the Supreme Court, I really begin to worry that Gonzales versus Raich and Wickard versus Filburn might be meeting their maker in an untimely death. That's fascinating you brought that up. I was just like, I wonder if they go ahead and say, we want you to brief the taxing issue, the necessary and proper clause issue, but also commerce. While you're here, let's just go ahead.
N. Rodgers: Let's take down a bunch of stuff while we're going. Well, the other thing, this court is not afraid of overturning long term precedent. They're fine doing that. This is the argument that I would make if I were the distillers, is when I buy a bottle of liquor, I have no idea how it was made. I have no idea what facility it was made in. I have no idea whether the workers were paid fairly, whether they
were treated fairly. I don't know anything about that. I just know that I can buy it off the shelf. Whereas, if I make it, I know that I am not abusing workers.
J. Aughenbaugh: Yes.
N. Rodgers: I'm running a clean operation. I'm not like X number of rat hairs per bottle of liquor is okay or whatever it is at the national level for the USDA. We tell people all the time, the best thing you can do is cook for yourself.
J. Aughenbaugh: Yes.
N. Rodgers: Don't buy pre made food because then you'll know what's in it, and then you can control the sodium levels, the fat levels, everything else. The argument I'd be making is, dude, I want to be able to control the amount of alcohol level, the cleanliness of the place, the workers' rights. I don't know. But that's a argument for another day. I'm excited to see where it goes, though.
J. Aughenbaugh: That's a long list of public policy, if you will, justifications. To me, in regards to constitutional law, I would squarely put in front of the justices. None of our members have any desire to make money on what they produce. They are in their homes.
N. Rodgers: They're hobbyists.
J. Aughenbaugh: They're hobbyists.
N. Rodgers: It's not intended to be they're going to come up with the next brand of whatever that sells.
J. Aughenbaugh: They may not even consume most of what they produce. They just want to see if they can and what's the outcome.
N. Rodgers: You know that on the way to Apple Pie Vodka, a whole bunch of stuff got zipped and then thrown away.
J. Aughenbaugh: Yes.
N. Rodgers: Because it didn't taste anywhere close to what you were trying to get to. That tastes like a tennis shoe. I've watched my friend who brews pour stuff down the drain because he's like, you don't know until you're done with the brewing process, whether it's going to be any good or not. That's the point of hobby alcohol making.
J. Aughenbaugh: To your point, and we'll conclude with this anecdote, I once asked my great grandfather, of all the jars of moonshine that he made over the years. By the way, Nia, he started making moonshine during the Great Depression.
N. Rodgers: Wow.
J. Aughenbaugh: Because they were so poor they could not afford to go and buy alcohol, so they made it.
N. Rodgers: It's not like you're going without. That's off the table.
J. Aughenbaugh: But I did ask my great grandfather.
N. Rodgers: You know how bad the world is, I need a drink.
J. Aughenbaugh: I asked him. I said, was there any you attempted that afterwards, you were like, no, and you just poured it out? He said, yes. He goes, I attempted a poison berry moonshine. He goes, it tasted worse than any cough medicine you have ever drank. I'm like, really? I said, because some of the stuff that you have given me, went down and burned like some bad cough medicine. He goes, you haven't developed a taste yet. But if you did, Boysenberry moonshine.
N. Rodgers: Is not there.
J. Aughenbaugh: He goes, I could never get the right mix of Boysenberry plus the distilled alcohol. I was just like, okay. But the strawberry stuff, he goes, if I wanted to, he goes, I could have made a whole bunch of money on the strawberry. I was just like, really? That's stuff that's still burning in my gut.
N. Rodgers: That's stuff that goes down like lava. It's not the floor is made of lava. The alcohol is made of lava.
J. Aughenbaugh: It's made of lava, yes.
N. Rodgers: But we don't know whether they've taken this case up or not. They haven't yet announced.
J. Aughenbaugh: Listeners, for those of you who are wondering, the Supreme Court is still on its summer furlough. They will return to Washington, DC and consider appeals that were submitted during the summer. They will do that the third and last week of September because their term begins in October. You should pay attention in the news to late September, early October for any announcement on whether or not the court has decided to take this issue. I have a feeling they will probably combine the two cases because they're basically about the constitutionality of the same law. It's just that two lower courts disagreed.
N. Rodgers: You can't let that go on.
J. Aughenbaugh: You just can't let that go on. One part of the country has to follow the law, and the other part of the country is like, Apple Pie vodka.
N. Rodgers: No. We don't want that happening for a variety of reasons.
J. Aughenbaugh: The reasons.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: Thank you, Nia.
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