The U.S. Supreme Court's 2026–2027 term just got a whole lot boozier. On Monday, the justices agreed to hear arguments later this year or next in the case of Department of Justice v. McNutt. At issue is whether the 1868 federal ban on distilling liquor at home is unconstitutional because it exceeds the lawful regulatory power of the federal government. If any modern Supreme Court case ever deserved its own drinking game, this one is it.

In April, the U.S. Court of Appeals for the 5th Circuit found the federal ban on home distilling to be unconstitutional because Congress lacked the proper authority to issue such a ban in the first place. It was not a legitimate exercise of the congressional authority "To Lay and collect Taxes," the appellate court reasoned, because "the purpose of a tax is to raise revenue for the government;" yet this law "amount[s] to an anti-revenue provision" that only "prevents distilled spirits from coming into existence." And if it does not exist, of course, the government cannot tax it.

The 5th Circuit also denied that the federal ban on home distilling could be saved by the government's appeal to the Necessary and Proper Clause, which says that Congress has the authority "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

But the federal ban on home distilling cannot be "necessary" to the execution of the enumerated taxing power, the 5th Circuit argued, because the provisions of federal law at issue "tax nothing, and are distinct from the regulation of distilling alcoholic products that is permitted by federal tax law."

Nor did the 5th Circuit find the ban to be "proper." "By purporting to ban activity without a plain connection to the exercise of Congress's taxation power," it held, "Congress has essentially—and 'improperly'—invaded the reserved police and regulatory power of the states."

The Trump administration lost this case at the 5th Circuit and has now successfully urged the justices to hear its appeal. In its petition seeking review, the Trump administration faulted the 5th Circuit for its overeagerness to "second-guess" the "legislative judgment" of Congress. Instead, the Trump administration argued, the federal judiciary owes a great deal more deference to the federal government's regulatory priorities in a case like this. "A law is necessary and proper if it is 'convenient' or 'useful' for carrying an enumerated power into effect, and 'plainly adapted' to that legitimate end," the Justice Department's brief argued. "That is the case here."

This case may lead to an interesting divide among the Supreme Court's more conservative members. In United States v. Comstock (2010), a 7–2 Supreme Court embraced the Necessary and Proper Clause as sufficient constitutional grounding for the Adam Walsh Child Protection and Safety Act, which had empowered federal officials to order the indefinite civil commitment of "sexually dangerous" individuals who had already finished serving their prison sentences. Chief Justice John Roberts joined the majority opinion in that case, while Justice Samuel Alito voted in concurrence. In other words, they both endorsed a broad view of congressional power under the Necessary and Proper Clause. By contrast, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, voted in dissent. The Comstock ruling, Thomas protested, "comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that 'we always have rejected.'"

Are we about to see a similar Alito-Thomas split over the proper reach of federal power in this case? And what about Justices Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh? Will one or more of them play the Scalia part and similarly reject the Trump administration's broad reading of the Necessary and Proper Clause?

Stay tuned.

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According to The Washington Post, "The chairman of the Republican-led House Oversight Committee is investigating two D.C.-based activist groups over hosting what he called 'jury nullification training sessions,' claiming that their instructions given to potential jurors were an illegal attempt to subvert federal prosecutors."

The committee chair in question, Rep. James Comer (R–Ky.), has set his sights on the groups known as Free DC and Harriet's Wildest Dreams because they, in Comer's words, believe "that potential jurors should not make decisions impartially based on applying the law as instructed to the facts presented before them in the case, but based on their subjective, personal beliefs and activist agendas."

I hate to break it to Comer, but many prominent members of America's Founding generation would have agreed with those D.C. activists.

The debate over jury nullification asks whether there is a proper place in our legal system for a jury to acquit, not because of any lack of evidence of a defendant's guilt, but because the jury believes the underlying law that was supposedly broken, or the prosecutor's particular enforcement of that law, to be unconstitutional.

In 1791, the influential Founding Father James Wilson, who was a signer of both the Declaration of Independence and the U.S. Constitution, delivered a widely discussed lecture on law at the College of Philadelphia. "Whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature," Wilson said. "When a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge." Needless to say, jurors are among those "called to act" in this very manner. Jurors therefore have their own "right to judge" the constitutionality of the law (and prosecution) before them.

Thomas Jefferson made a similar point in a 1789 letter to Thomas Paine. "The trial by jury," Jefferson wrote, is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." How else may a jury hold the government accountable to the principles of the Constitution than by judging for itself the constitutionality of the government's actions, including the actions of the police and prosecution?

According to Comer, the job of a juror is mechanically "applying the law as instructed to the facts presented before them in the case."

But that's not what Founding Fathers such as Wilson and Jefferson thought. They argued that the job of the juror was to apply the text of the Constitution to the actions of the government and to acquit the defendant if either the law or its enforcement came up short. As Alexis de Tocqueville put it in his great book, Democracy in America, the jury "places the real direction of society in the hands of the governed, or a portion of the governed, and not in that of the government."

In Other Legal News

The U.S. Supreme Court heard oral arguments this week in two cases that are worth keeping track of.

• On Tuesday, the justices weighed the matter of Beaird v. United States, which asks how much judicial deference is owed to the U.S. Sentencing Commission's commentary on the federal sentencing guidelines when a judge is applying those guidelines during a federal criminal defendant's sentencing. You can read this newsletter's past coverage of that case here.
• On Wednesday, the justices took on the matter of Salazar v. Paramount Global, which asks whether the website 247Sports violated the Video Privacy Protection Act of 1988 when it shared a user's private information, including what videos he watched, with Facebook. Past Injustice System coverage of that case is available here.

The post Jury Nullification Is Not a Crime appeared first on Reason Magazine.

The U.S. Supreme Court is scheduled to hear oral arguments today in an important case that asks how much judicial deference is owed to the U.S. Sentencing Commission's commentary on the federal sentencing guidelines when a judge is applying those guidelines during the sentencing of a federal criminal defendant. That may sound like a somewhat dry legal dispute, but the ramifications are big not only in the realm of criminal law, but also for the broader legal battle over statutory interpretation, the role of the courts, and the authority of those federal agencies that some critics have called "the administrative state."

The case is Beaird v. United States. Kendrick Jarrell Beaird was arrested for pointing a gun at someone and, because he had a prior felony record, was convicted as a felon in possession of a firearm. Under the federal sentencing guidelines, Beaird faced an even higher sentence if the firearm "involved…is capable of accepting a large capacity magazine." His gun's magazine was capable of holding 17 rounds. Did that count as large capacity and thus trigger a higher sentence? The federal sentencing guidelines did not directly say, but the U.S. Sentencing Commission's commentary on the guidelines did: According to the commentary, a magazine capable of accepting "more than 15 rounds of ammunition" counts as large capacity.

Are the federal courts bound to follow the Sentencing Commission's commentary in a case like this and dutifully impose a steeper sentence? Or may the courts impose a lower sentence based on their own alternate view of the best reading of the text of the sentencing guidelines?

In Stinson v. United States (1993), the Supreme Court held that the commentary to the federal sentencing guidelines is entitled to major deference from the courts. "We decide that commentary in the Guidelines Manual that interprets or explains a guideline is authoritative," the Court said, "unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."

Among the questions at issue in today's oral arguments in Beaird is "whether Stinson v. United States still accurately state[s] the level of deference due to the Commentary of the Federal Sentencing Guidelines." In other words, should there be cases in which a judge's alternate reading may trump the interpretation favored by the commission's commentary?

Those questions alone make this a notable case. But this particular dispute also arrives in the midst of a broader, ongoing battle over judicial deference to the authority of federal regulatory agencies. For instance, in Kisor v. Wilkie (2019), the Supreme Court narrowly upheld a precedent which said that a federal agency's interpretation of its own "ambiguous" rule is entitled to broad judicial deference unless the agency's interpretation is "plainly erroneous or inconsistent with the regulations being interpreted."

Justice Elena Kagan's 5–4 majority opinion in Kisor v. Wilkie justified this holding on the grounds that the Court's deferential doctrine "enables the agency to fill out the regulatory scheme Congress has placed under its supervision."

Writing in dissent, Justice Neil Gorsuch faulted this approach for requiring judges "to accept an executive agency's interpretation of its own regulations even when that interpretation doesn't represent the best and fairest reading." That sort of deference, Gorsuch argued, "creates a 'systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.'"

This Kagan-Gorsuch clash of legal visions is likely to arise again in the Beaird case. Whether or not Kagan's pro-deference view will still command the majority, however, remains to be seen.

The post A New Supreme Court Case Tests the Limits of Judicial Deference to Federal Agencies appeared first on Reason Magazine.