On July 10, a U.S. District Court in Texas ruled that the federal ban on at-home distillation of beverage spirits is unconstitutional:
Lawyers at the Competitive Enterprise Institute (CEI) represent several amateur home-distilling enthusiasts who want to pursue the essentially harmless hobby of at-home distilling of beverage spirits for personal use without the looming threat of legal sanctions. Under federal law, distilling in one’s home or backyard can result in a $10,000 fine and a five-year imprisonment.
The court found that:
- The federal ban on home distilling exceeds the scope of the federal government’s limited powers.
- The Constitution’s tax power does not allow the federal government to ban home distilling, largely because the ban does not add money into the federal treasury or protect federal tax revenue.
- The Constitution’s power to regulate interstate commerce does not allow the federal government to ban home distilling, largely because the ban neither regulates interstate commerce directly nor is it related to any larger regulatory scheme.
This decision does not affect the regulatory powers of state governments; the states’ powers to regulate health and safety matters, and thus to regulate home distilling, are untouched by this decision.
“This decision is a victory for personal freedoms and for federalism,” said CEI General Counsel and plaintiffs’ attorney Dan Greenberg. “We’re pleased to see that the court determined that the home distilling ban is unconstitutional – and that it blocked enforcement of the ban against our clients. More broadly, the court’s decision reminds us that, as Americans, we live under a government of limited powers.”
“While the federal government has become more enthusiastic about inflating the scope of its powers over the last century, this case shows that there are limits to the government’s authority,” said CEI attorney and plaintiffs’ attorney Devin Watkins. “If the government appeals this decision to a higher court, we look forward to illuminating those limits.”
The court chose to stay the application of its order for fourteen days so that the government may seek emergency relief at the Fifth Circuit Court of Appeals. The court also determined that some, but not all, plaintiffs in the case lacked standing in the case and therefore dismissed them from it. The remaining plaintiffs are one corporation and one person: that is, the Hobby Distillers Association – a group with roughly 1,300 members nationwide – and Scott McNutt. The court has enjoined enforcement of the distilling ban against McNutt, the Association, and the Association’s members.
The Competitive Enterprise Institute is also suing the Biden administration over regulations that make dishwashers and washing machines less effective at getting things clean.
The federal regulations that make dishwashers and washing machines worse are also illegal. So claim consumers from Texas and Louisiana in a new lawsuit filed against the U.S. Department of Energy (DOE),” reports Reason Magazine. “While DOE has the authority to regulate the energy used by these appliances, the lawsuit argues, Congress never gave it the power to regulate the devices’ water usage. Therefore, recent rules imposing limits on their water use are illegal.”
The Energy Department only has the authority to “write rules” that are “based on legislative text,” says Dan Greenberg of the Competitive Enterprise Institute, which is representing the consumers in their lawsuit. “The difficulty is the rules that it’s created seem to rely on authority that’s not in the statutory text that Congress has passed.”
As Reason notes,
Under President Joe Biden, the DOE has been an aggressive regulator of home appliances. It has scrapped numerous Trump-era rules liberalizing efficiency conversation standards for showerheads and dishwashers, and it has attempted to impose stricter regulations on an even wider range of products…Stricter energy efficiency standards are also often counterproductive. Because the machines’ performance has decreased, more people are handwashing their dishes—a process that uses much more water.
The DOE’s regulatory onslaught has run into other legal problems. Back in January, the U.S. Court of Appeals for the Fifth Circuit blocked the department’s repeal of the Trump administration’s looser energy efficiency standards for dishwashers. The court ruled that the DOE hadn’t properly considered the ways that energy efficiency standards lead consumers to use more energy and water….Of most relevance for this latest lawsuit, the Fifth Circuit ruled that the energy regulations passed by Congress over the years did not give the DOE the power to regulate the water consumption of energy-using appliances such as dishwashers and laundry machines beyond the explicit limits set in statutes. The DOE could regulate the water use of non-energy-using plumbing fixtures, such as showerheads, and it could regulate the energy use of dishwashers and laundry machines, but it could not regulate the water use of the latter machines.
Nevertheless, in February 2024, DOE went ahead and issued new water limits for dishwashers and residential laundry machines.
These water limits are counterproductive, says Greenberg. “Instead of one cycle, you have to do two or three cycles. What you save in water bills you’ll have to pay just as much or more in the cost of increased electricity but also time and increased physical labor…these rules are a mindset of certain regulators in Washington who don’t understand how trade-offs work.”
Even the regulations that the Biden administration had the jurisdiction to impose — such as restrictions on the flow of water in showerheads — are counterproductive. Rules that require showerheads to restrict the flow of water make it harder to get a good shower. People compensate by taking longer showers, which results in overall water use going up rather than down. This not only wastes water, but also wastes people’s precious time.
This is what researchers have found, notes Professor Ian Walker: “There’s a clear negative relationship between water pressure and consumption. More powerful showers used less water overall. A LOVELY TINGLY SHOWER MIGHT BE *BETTER* FOR THE ENVIRONMENT THAN A WEAK DRIBBLE. I know, right?”
290 people in an English study “burned through an extra” 4.4 million liters of hot water, and about 15 tons of CO2, over the course of 39 weeks, due to showerheads that restrict the flow of water.
In the U.S., showerheads restrict water use due to regulations adopted under a federal law known as the Energy Policy and Conservation Act (EPCA). Thanks to regulations issued by the Department of Energy under the EPCA, dishwashers and washing machines take much longer to run than they used to, and get clothes and dishes less clean. These regulations aim to save water, but it is not scarce in most of the country, and does not need conserving. The regulations do this by making washing machines use ridiculously little water, too little water to get many clothes and some dishes clean. As a result, some people run their washing machine or dishwasher multiple times rather than just once, increasing energy use.
