Circuit Split on Home Distilling Ban
Home distilling any amount of spirits has been a Federal felony for over 150 years according to 26 USC § 5601. The law had originally also included making beer and wine at home, although that part of the ban was lifted in 1978.
Back in April, the 5th Circuit overturned the ban in McNutt v. Dept. of Justice, arguing that this law bans distilling spirits at home with no option to pay the spirit tax in order to distill legally. The panel argued that this amounted to a tax law designed to produce no revenue and decided that such a law exceeds Congress' authority to levy taxes.
Later that same month, the 6th Circuit held in Ream v. Dept. of the Treasury that the law was within Congress' authority under the "Necessary and Proper" clause, which the 5th Circuit had found unconvincing. This created a circuit split.
The Buckeye Institute, which represented the plaintiffs in both cases, has announced that they intend to appeal the 6th Circuit decision to SCOTUS. Based on the above, it seems likely that SCOTUS will grant cert to resolve the split. What would you say the likely outcome would be and why?