389 | It's Time to Legalize Home Distilling | Guest: Robert Alt

Summary

Episode Overview

Podcast: Kibbe on Liberty
Host: Matt Kibbe (with frequent comments by Terry Kibbe)
Guest: Robert Alt (President, Buckeye Institute)
Episode: 389 – It's Time to Legalize Home Distilling
Date: June 3, 2026

This episode focuses on the fight to legalize home distilling in America, using both constitutional principles and real-world consequences as a springboard for a larger discussion on federal overreach, liberty, and the spirit of innovation. Special guest Robert Alt walks listeners through the legal battle his team is waging against century-old federal restrictions on home liquor distilling, the broader implications for limited government and decentralization, and why Americans should insist on the right to distill whiskey in their own homes.

---

Key Discussion Points & Insights

1. The Legacy and Regulation of Alcohol in America

• The Home Distilling Ban
  • Making as little as an ounce of whiskey at home is a federal felony, punishable by up to $10,000 in fines and five years in prison, plus asset seizure ([08:15]).
  • By contrast, home brewing of beer and wine is legal thanks to deregulation efforts by President Jimmy Carter ([02:03], [07:44]).
  • "Draconian penalties for home distilling." – Terry Kibbe ([08:37])
• The History of Regulation
  • Alexander Hamilton’s whiskey tax led to the Whiskey Rebellion, “the moment we lost the Republic,” according to Kibbe ([05:55]).
  • After the Civil War, a ban on home distilling was implemented for ease of tax collection ([11:33]).
  • The regulatory system today creates a highly centralized alcohol industry—a “cartel” that limits local innovation and consumer choice ([12:00]).

2. The Legal Challenge & Constitutional Arguments

• Robert Alt’s Litigation Efforts
  • Alt’s team challenges the ban using two constitutional arguments: that Congress’s taxing power cannot be used to prohibit otherwise lawful conduct, and that banning personal use distilling does not fall within the interstate commerce clause ([09:32]).
  • Two high-profile cases are potentially headed to the Supreme Court:
    • Sixth Circuit (Ohio)—loss for Alt’s client, John Ream
    • Fifth Circuit (Texas)—win for the Hobby Distillers Association ([15:45])
• Why the Commerce Clause Matters
  • The modern interpretation is far broader than the Constitution intended (e.g., Wickard v. Filburn, [21:23]; Raich, [25:07]).
  • “It's hard to think of anything that wouldn't be within the ambit of congressional regulation.” – Robert Alt ([22:56])
• What’s at Stake?
  • “Are you truly free if you can't engage in otherwise lawful activity in the privacy of your home?” – Robert Alt ([08:47])
  • The case is about more than alcohol: “This presents a great vehicle for the Supreme Court to... resolve this issue, both on the question of distilling in your home, but also on the larger questions of the scope of congressional authority.” – Robert Alt ([19:23])
  • “There’s almost nothing that you do within the privacy of your home that would be beyond the authority of the federal government, and that just can't be right.” – Robert Alt ([27:24])

3. The Power of Local Innovation

• The Jimmy Carter Example
  • Carter’s legalization of home brewing sparked the craft brewery revolution in the U.S., leading to popularity, community, and innovation among small local breweries ([02:06]; [31:18]).
  • “To Carter!” – Robert Alt ([02:53])
• Story: John Ream – The Perfect Plaintiff
  • John Ream—a former aerospace engineer and Terry Kibbe’s nephew—went from tinkering with home brew kits to founding Trek Brewing in Newark, Ohio ([13:10], [14:29]).
  • “This is really the story of America, quite frankly—tinkering in your garage and creating something that creates value for yourself and others.” – Robert Alt ([14:34])
• Community Impact
  • Local breweries like Trek serve as community gathering places, supporting families and local charities ([33:15]).
  • “This is the sort of thing we should be encouraging. We shouldn't be throttling this sort of innovation.” – Robert Alt ([33:54])
• The Potential for Home Distilling
  • More legal home experimentation could result in a wave of new American whiskeys and spirits, just as with craft beer ([34:00]).

4. Broader Fight for Civil Liberties

• Defending Donor Privacy
  • Buckeye Institute also challenges IRS regulations that require nonprofits to submit names of major donors, potentially exposing them to government abuse ([35:11]).
  • Roots of donor privacy trace to NAACP v. Alabama and civil rights–era government harassment ([41:14]).
  • “The power to tax is the power to destroy.” – Terry Kibbe ([43:51])
  • IRS itself admits it can’t use the donor information for audits; collecting it increases risk of leaks and political retaliation ([45:22]).
• Government Dysfunction and Inaction
  • Congress is unable or unwilling to address clear legal or regulatory anomalies—even in non-controversial areas ([29:35]).

---

Notable Quotes & Memorable Moments with Timestamps

• On the historical loss of liberty:

  • “It was during the research for that talk that I realized that the moment we lost the Republic... is when Alexander Hamilton convinced George Washington to squash the Whiskey Rebellion.” – Matt Kibbe ([05:55])

• On federal penalties for home distilling:

  • “If you make even an ounce of whiskey at home, it’s a felony punishable by $10,000 in fines, up to five years in prison per incident. And the federal government has made it clear they’ll go after your home.” – Robert Alt ([08:20])

• On true liberty:

  • “Are you truly free if you can't engage in otherwise lawful activity in the privacy of your home? Of course not.” – Robert Alt ([08:47])

• On the overreach of the Commerce Clause:

  • “Once you can say that something, it doesn’t have to be interstate or commerce, but if it substantially affects, if we aggregate it, ... then that might have an economic effect. It's hard to think of anything that wouldn't be within the ambit of congressional regulation.” – Robert Alt ([22:36], [22:56])

• On the principle at stake:

  • “The case is about more than just whiskey, Ohio, or freedom. It’s about… the breadth of federal overreach into your daily life.” – Robert Alt ([21:12])

• On the power of innovation:

  • “Americans are great at experimenting in their basement and their garages. Some of the most amazing products that the world knows today were made in someone's basement or garage. Why is it we’re stopping people from doing that?” – Robert Alt ([34:49])

• On the IRS auditing nonprofits:

  • “I've never seen a 501c3 nonprofit subjected to a full field audit. Can you tell me why you're auditing the Buckeye Institute?... The agent said, 'well, it's purely random and if it weren't, I couldn't tell you.'” – Robert Alt ([39:09])

---

Important Timestamps by Segment

• [00:54]–[08:15] – Opening banter, the case against home distilling, toast to Jimmy Carter, regulatory quirks of whiskey
• [08:20]–[11:00] – The draconian federal penalties for home distilling
• [12:00]–[17:18] – Home distilling litigation explained, legal strategies, current status of the case (Sixth and Fifth Circuit split), context for likely Supreme Court review
• [19:35]–[27:29] – Deep-dive on fundamental constitutional principles: commerce clause, taxing authority, and the balance of federal power
• [29:35]–[31:18] – Political obstacles to legislative reform; Congress’s dysfunction
• [31:18]–[35:04] – The social and innovative benefits of home brewing and potential for home distilling, community-building via local breweries
• [35:11]–[46:35] – Current Buckeye Institute fights: IRS donor privacy, risks of government overreach, historical context of privacy protections
• [46:45]–[47:40] – Timing for Supreme Court decision on home distilling: likely oral argument in 2026–27, possible final judgment by June 2027
• [47:44]–[48:19] – Hopes for a future toast with legally home-distilled whiskey

---

Summary Table: Path of the Home Distilling Legal Challenge

| Legal Issue | Fifth Circuit (Texas) | Sixth Circuit (Ohio) | Supreme Court Potential | |------------------------|-----------------------|----------------------|------------------------| | Home Distilling Ban | Ruled Unconstitutional | Upheld Ban | Circuit split makes SCOTUS review likely | | Key Statutes | Taxing Power, Commerce Clause | Taxing Power, Commerce Clause | Constitutional limits of both powers | | Plaintiff(s) | Hobby Distillers Association | John Ream (engineer, brewer) | Review may cover both cases | | Timeline | Decision reached | Decision reached | Supreme Court grant possible by Fall 2026; ruling Summer 2027 |

---

Final Notes: The Stakes and Looking Ahead

• The issue is not just about whiskey: It's about reclaiming the right to innovate, create, and gather freely in America.
• The Supreme Court could use this “perfect storm” of a case to restore constitutional limits on federal power—as applied to both alcohol regulation and beyond.
• If successful, Alt, Kibbe, and fellow libertarians look forward to a future toast: “Hopefully sometime in the future, we’ll be drinking John Ream’s locally crafted whiskey.” – Matt Kibbe ([47:44])

---

Cheers to liberty, innovation, and (maybe soon) legal home distilling!

Transcript

[Matt Kibbe]

Welcome to Kibbe on Liberty. We're having whiskey for breakfast and we're talking to constitutional lawyer and president of

[Narrator/Host Intro]

the Buckeye Institute, Robert Alt, about a

[Matt Kibbe]

very important case hopefully making its way to the Supreme Court that will legalize your ability to distill at home. This is important, so you gotta check it out.

[Narrator/Host Intro]

Welcome to kibby on liberty.

[Matt Kibbe]

Robert, how are you?

[Robert Alt]

I'm doing well. Great to be here.

[Matt Kibbe]

So we are going to talk about alcohol, the most important subject ever and how to free alcohol from the grips of regulators and tax collectors. And Even though it's 9 o' clock in the morning, I feel like we need to be drinking while we have this conversation.

[Terry Kibbe]

It seems necessary.

[Robert Alt]

And if there's anything I like better

[Terry Kibbe]

than a good dram of whiskey, it's limited government. So getting to talk about both, how

[Robert Alt]

could it be better?

[Matt Kibbe]

Right? And you know, it's happy hour somewhere.

[Terry Kibbe]

Exactly.

[Matt Kibbe]

You know, this originally was supposed to be a drinking show, but then I had my. One of my favorite senators, Mike Leon, who is a devout Mormon and it just didn't work. This, I can't say much about it except that I liked it when I tried it. Hemingway barrel strength rye, 51% alcohol. So something light for breakfast, but it was pretty good. Finished in rum season Oloroso sherry casks, which is a new way of doing things.

[Terry Kibbe]

Very nice. Well, let me propose a toast.

[Robert Alt]

And I'm going to guess a toast that has never been, even if this was at one point a drinking show that has never been uttered on this particular program, which is I propose that we drink to Jimmy Carter. And that may not seem obvious, but Carter did a couple of things. Well, one, of course airline deregulation. But he also opened up home brewing. He made home brewing legal and that created a revolution across the country. From the macro brews that we had to the really fine microbrews that have

[Terry Kibbe]

cropped up all over and have created

[Robert Alt]

competition and diversity and really supported what we think about in terms of economic theory, but also given us much more

[Terry Kibbe]

palatable ales to drink. So to Carter.

[Matt Kibbe]

To Jimmy.

[Robert Alt]

That's nice.

[Matt Kibbe]

Yeah, I've talked about this in the past, but one of our favorite bourbons, and they make a beautiful rye as well, is Angel's Envy. And I feel like they're the first guys in Kentucky to do what is pretty typical in Scotland, which is to finish a bourbon in like a sherry cask or something like that. And this now it's pretty normal with rye and bourbon and I really like what happens there. So this I Think this is quite tasty.

[Terry Kibbe]

Yeah. Well, it's interesting you say that because I think part of the, as I understand it, I could be wrong on this. Part of the issue with American whiskey on that is the regulation, my understanding is to be bourbon, it has to be in new oak barrels, aged in new oak. And I guess they've been able to get around that with regard to the finishing. But in Scotland, that's, that's entirely common. You go to the distilleries there and they've got, in fact, because of the, the Cooper's Union requirements here in Kentucky, they have all these bourbon barrels stacked up at the distilleries because they're looking at these, these are basically new and they're able to reuse them for aging the Scotch whiskey.

[Matt Kibbe]

So I had Phil Magnus on and I was trying to convince my audience that one of the many unintended consequences of Trump's tariff policies would be a rising cost in bourbon. Because the knee jerk reaction is, well, just drink American whiskey. But of course, American whiskey is kind of dependent on this trade because those barrels are quite expensive. Regulatorily, they can't reuse them, so they ship them to Scotland. And it turns out that trade sometimes works for everybody. But we're not going to talk about that. We're going to talk about the federal government's incessant need to tax the crap out of one of my favorite beverages. And I think you've seen this, Terry and I do this talk called Whiskey is Freedom and it's a trap because people think they're coming to a lecture. Well, they think they're coming to a whiskey tasting. And we'll put out a rye, we'll put out a bourbon, we'll put out an Irish, and we'll put out a Scotch, single malt. And it was during the research for that talk that I realized that the moment we lost the Republic, you know, it wasn't when Obama was elected, it wasn't when Biden was elected. It's when Alexander Hamilton convinced George Washington to squash the Whiskey Rebellion. That's, that's when we knew that there was too much federal power and it

[Narrator/Host Intro]

was all about taxes.

[Matt Kibbe]

It was all about sort of bailing out our new government after the Revolutionary War, a pattern that would continue. But even then, Alexander Hamilton ensured that the tax, the incidence of that alcohol tax, screwed the little guy, screwed the home distiller, screwed the farmers in Pennsylvania who were basically trying to come up with some sort of commodity that would survive the winter. And, you know, grain didn't but whiskey did. And I feel like we've lost a key part of what made America America, going all the way back to the Whiskey Rebellion. But it's on your shoulders to fix this problem. No pressure. You could save America from itself, from a, a mistake that's over a century old. And you have litigation going on right now. Tell us what the project is.

[Terry Kibbe]

So the project really is to make home distilling legal, which is when you

[Robert Alt]

think about home distilling, I mean, this

[Terry Kibbe]

is something that's as American as apple pie and actually probably dates back even further. That first President Washington is famous for having distilled at home. And if you go to Mount Vernon now, they've, they've discovered some of his recipes and have a still set up there where they, they produce some, some of his product based upon his original recipes.

[Robert Alt]

But you know, you mentioned Hamilton's move. Hamilton would not have, I think, even

[Terry Kibbe]

dreamed about how far America has gone in the regulation of home distilling.

[Robert Alt]

So if you want to make beer

[Terry Kibbe]

at home, thanks to Jimmy Carter, perfectly legal.

[Robert Alt]

If you want to make wine at home. Now, Kibby, you've traveled the world and

[Terry Kibbe]

you may have actually gotten some good homemade wine.

[Robert Alt]

I don't think I've ever had a good glass of homemade wine. But nonetheless, perfectly legal to do so

[Matt Kibbe]

in the country of Georgia. It can happen. I can attest that my dad's Concord grape wine when I was a kid, which I might have snuck into. I didn't sneak twice. It did not turn out well.

[Robert Alt]

It's. The taste can be its own deterrent. But if you make even an ounce

[Terry Kibbe]

of whiskey at home, it's a felony punishable by $10,000 in fines, up to

[Robert Alt]

five years in prison per incident. And the federal government has made it clear they'll go after your home. They'll try and seize your home at the same time.

[Terry Kibbe]

Draconian penalties for home distilling.

[Robert Alt]

And this dates back to the law's

[Terry Kibbe]

been in place for 158 years now.

[Robert Alt]

That's bad enough. I mean, we begin on this show, I think, with the basic question, are you truly free if you can't engage

[Terry Kibbe]

in otherwise lawful activity in the privacy of your home?

[Robert Alt]

Of course not. And we have this overweening federal government, this isn't the state government that's doing this. This is an act of Congress prohibiting

[Terry Kibbe]

you from engaging in home distilling.

[Robert Alt]

Congress, of course, as I said at the beginning here, I love limited government. I love the limits that we have

[Terry Kibbe]

placed on our federal government.

[Robert Alt]

Congress has Limited and enumerated powers. It doesn't have the general police power that was reserved to the states by

[Terry Kibbe]

the founders, the ability to regulate health, safety, welfare.

[Robert Alt]

Congress not supposed to do that. They've got a laundry list of powers. And so Congress has justified this prohibition on home distilling on two powers, essentially the taxing power and the commerce clause power problems with each of those. The taxing power, they're prohibiting the production of a product that would otherwise be taxed. And so it's difficult.

[Terry Kibbe]

And we'll get to.

[Robert Alt]

There was a great court opinion on this point. It's difficult to justify. Well, we want to. In furtherance of collecting the tax, we're going to prohibit you from actually engaging in taxable conduct. So that's on the one hand. On the other, the commerce clause. It's the. Let's be clear. This is the interstate commerce clause. And so the question is, can hobby distilling, distilling something for your own personal consumption in your basement, in your garage that never leaves your home, can that

[Terry Kibbe]

truly be interstate commerce?

[Robert Alt]

And so this, the cases that we've

[Terry Kibbe]

brought, we've got two of them that are, that are making their way up to the Supreme Court, I think are likely to go to the Supreme Court.

[Robert Alt]

They're important for home distilling, yes, but they're even more important for limited government.

[Narrator/Host Intro]

The political noise machine is loud and slop is more prevalent than ever. Cutting through the bull takes more than opinions. It takes data. That's why I'm fired up about Free the People's launch of the Words and Numbers podcast. Anthony Davies and James Harrigan are two PhDs, an economist and a political scientist who don't care about the feelings of the political parties. They only care about the truth. Every Thursday, they break down the numbers behind the headlines and leave you genuinely smarter. Find the latest [e-mail] on social media, re the people or anywhere you listen to podcasts. Stay free out there.

[Matt Kibbe]

Yeah. And you know, the, the original ban. As I understand it, the original ban on home distilling was much like Hamilton's effort to bail out the US Government after the Revolutionary War. The, the imposition of this prohibition was to make tax collection easy after the Civil War. So for, so for me, it's, you know, the, the taxing stuff is, is quite important and it gets into the whole question of winners and losers and in that regulatory game. And, and it's worth noting, you're talking about the beautiful diversity and energy in craft brewing liberated by Jimmy Carter and then liberated by other pro craft beer laws that started on the West Coast. Alcohol is quite centralized, and it's kind of a cartel that's reinforced by regulatory prohibitions and tax compliance and all that stuff that centralizes it and makes it kind of contrary to the idea of America that the individual should be free. And particularly in your home, particularly in your community. And somewhere along the way, you found this guy named John Rehm. How did that happen?

[Robert Alt]

So, first of all, John just, you

[Terry Kibbe]

know, a great plaintiff for us in this case. And.

[Robert Alt]

Well, I mean, I guess first of all, the answer is John is Terry Kibbe's nephew. And so as we were looking for someone who would be the right plaintiff for us on this challenge, you know, he's got an amazing story. So he's an aerospace engineer, whip smart, worked for Boeing, and his fiance at

[Terry Kibbe]

the time bought him a home brewing kit.

[Robert Alt]

And so he begins tinkering. And really, this is the story of America, quite frankly. So he's tinkering in his basement. And, you know, it reminds me, I

[Matt Kibbe]

was in and I had some of

[Robert Alt]

those beers and I'm, you know, and John has told me that they were

[Terry Kibbe]

barely drinkable back then when he was first starting out.

[Robert Alt]

But you can. You can tell me sort of how quickly he was able to. But he applied his engineer's mind to the task and pretty soon was making very subtle ales and excellent craft brews to the point where he finally decided, you know what? I'm going to quit Boeing, which seems

[Terry Kibbe]

like a genius decision at this point,

[Robert Alt]

and I'm going to hang out my own shingle. I'm going to engage in entrepreneurship and start my own craft brewery.

[Terry Kibbe]

Is which.

[Robert Alt]

Which he's done. And he's become a pillar of the community in Newark, Ohio.

[Terry Kibbe]

Trek Brewing, if you're there, check it out. He makes great brews.

[Robert Alt]

But as I said, I was actually out in Palo Alto a while back, and I was out for a run, and I passed by this historical marker, and it was by a garage. And this garage is where Hewlett Packard was founded. And that is considered the birthplace of Silicon Valley. And it really is the story of America tinkering in your people tinkering in their garages and creating something. Creating something that creates value for themselves and for others and for society. You know, this is how we innovate. And the idea that we're going to put regulations and restrictions that prohibit people from even. Even tinkering in their garages, it's just fundamentally un American. And that's what John Ream is facing. So he was able to tinker and create this wonderful craft brewery. He's an aficionado of whiskey and rye, bourbon and rye particularly, and he'd like to try his hand at distilling for his and his wife's own personal consumption. But he can't even make that first

[Terry Kibbe]

dram of whiskey without risking his home,

[Robert Alt]

thousands of dollars in fines, and a prison sentence. So we've gone ahead. We have filed a lawsuit on his behalf, which has gone all the way up at this point to the 6th Circuit Court of Appeals, just below the Supreme Court. We've got a companion case down in Texas in which we're representing the Hobby Distillers association as well. And just sort of to catch you up on the cases right now, we've got kind of an interesting combination. The fifth Circuit, that's the case down in Texas, ruled in favor of our plaintiffs under the taxing authority and necessary and proper, and said, look, this just,

[Terry Kibbe]

you know, it is not consistent with

[Robert Alt]

Congress's power to tax or necessary and proper. It's not, you know, you're prohibiting a product if you're properly using the taxing authority, it should ultimately leave the taxpayer with a choice, you know, don't do the conduct or pay the tax. In this case, that's not even an option. It's just a flat prohibition. And the flat prohibition prohibits the government

[Terry Kibbe]

from collecting the tax.

[Robert Alt]

So it's difficult to see how it is.

[Terry Kibbe]

This is in furtherance of the tax, a very, very thoughtful opinion by Judge Jones, who's a highly respected jurist striking

[Robert Alt]

down the federal statute. Then 11 days later, in the Sixth

[Terry Kibbe]

Circuit, the court reached the opposite conclusion in our case.

[Robert Alt]

You know, I've never been so happy to lose a case in my life, because when you're, you know, the big thing about Supreme Court review, and ultimately, this is a question that. That we think the Supreme Court is going to need to weigh in on. The tough thing is getting the Supreme Court to hear a case. They get somewhere between 7,500 and 10,000 petitions every year to hear cases. And the Supreme Court, unlike other courts, they get to pick and choose their docket. And they're particularly choosy. They've been hearing fewer and fewer cases these days.

[Terry Kibbe]

They hear about 60 cases a year.

[Robert Alt]

And folks have been somewhat critical of

[Terry Kibbe]

the diminishing docket on the court. But it is what it is.

[Robert Alt]

So the question is, how do you

[Terry Kibbe]

get that golden ticket?

[Robert Alt]

How do you end up going from one of the 10,000 to being one

[Terry Kibbe]

of the few Cases to be heard. There's two big roads, essentially, to get your case heard.

[Robert Alt]

One is if you happen to have a federal law that struck down in whole or in part, the Supreme Court

[Terry Kibbe]

almost always takes those cases. A while back, I had done a study, and in the last century, there had been, I think, one time a federal statute had been partially struck down where the court didn't take the case.

[Robert Alt]

They take almost all of those. So we're on good footing to begin with. The other big road is if there's a circuit split, if two federal courts

[Terry Kibbe]

of appeals rule differently on a question

[Robert Alt]

of law, particularly federal law, and oftentimes lawyers are trying to make a circuit

[Terry Kibbe]

split where maybe there's not really one.

[Robert Alt]

Well, if you look at it in

[Terry Kibbe]

just the right angle, there's a difference

[Robert Alt]

between the courts on this. In our cases, between the 5th Circuit with the hobby distillers and the 6th Circuit with ream, the courts are going

[Terry Kibbe]

in the exact opposite direction on the same question of law.

[Robert Alt]

So this presents a great vehicle for

[Terry Kibbe]

the Supreme Court to take this up

[Robert Alt]

and resolve this issue, both on the question of distilling in your home, but also on the larger questions of the

[Terry Kibbe]

scope of congressional authority.

[Matt Kibbe]

Let's talk about the big principles. What's at stake here, and. And why should people care about this other than us drinkers who would love to have more diversity and choice?

[Robert Alt]

And the last would be good enough, and I'd be thrilled with getting that, but the principle is much bigger. I'll take you back. I sometimes talk about the this case as being something that brings together three things I love. Whiskey, Ohio, and freedom. And the Ohio part of it may not be obvious at first.

[Matt Kibbe]

It's definitely not obvious.

[Robert Alt]

But Ohio weighs heavily in these opinions. First of all, it's interesting. The government has tried to argue that the prohibition is about tax collection.

[Terry Kibbe]

It's actually not terribly clear that it was. It. It seems like the Prohibition may have been part of a precursor to Prohibition, that some of that sentiment may actually have been, in part what motivated some

[Robert Alt]

of these regulations and Prohibition. The birthplace of Prohibition is Westerville, Ohio, actually.

[Terry Kibbe]

And there is a plaque there to Prohibition.

[Robert Alt]

And I have a picture next to

[Terry Kibbe]

it, I think, going like this.

[Matt Kibbe]

But, yeah, I was going to say a badge of shame for your home state.

[Robert Alt]

Exactly. And another badge of shame is one of the worst cases in the history

[Terry Kibbe]

of the United States Supreme Court, which

[Robert Alt]

really goes to the scope and the

[Terry Kibbe]

breadth of federal overreach into your daily life.

[Robert Alt]

That case goes back to the New Deal.

[Terry Kibbe]

It's called Wickard against Filburn.

[Robert Alt]

And this went to price controls during the New Deal. So the way, the way that the New Deal government sought to regulate the price of wheat was to cap the amount of wheat that farmers could grow, even small farmers. So farmer Philburn lived out near Dayton, Ohio. He exceeded rapscallion that he is, he

[Terry Kibbe]

exceeded the number of acres of wheat that he was allowed to grow.

[Robert Alt]

I think he grew 12 more acres

[Terry Kibbe]

of winter wheat than he was permitted.

[Matt Kibbe]

Goodness.

[Robert Alt]

And he was slapped with a substantial fine by the Secretary of Agriculture. He takes his case all the way

[Terry Kibbe]

up to the Supreme Court and says,

[Robert Alt]

look, you're claiming that you're regulating my

[Terry Kibbe]

sale of wheat and fining me based upon the interstate commerce clause, but you've got a problem.

[Robert Alt]

That wheat, that excess wheat never went on market. I used it to feed my farm animals and my family.

[Terry Kibbe]

So it never left the farm.

[Robert Alt]

So it wasn't commerce, wasn't interstate, and that should be the end of the story. And the U.S. supreme Court in one of the worst decisions ever, said, even though it's not interstate and even though it's not commerce, it might on the

[Terry Kibbe]

aggregate substantially affect interstate commerce. And that was it. We were off to the races.

[Robert Alt]

Once you can say that something, it doesn't have to be interstate or commerce,

[Terry Kibbe]

but if it substantially affects, if we aggregate it, if we apply some sort of Kantian principle that if everyone does it, then that might have an economic effect.

[Robert Alt]

It's hard to think of anything that

[Terry Kibbe]

wouldn't be within the ambit of congressional regulation.

[Matt Kibbe]

It's a blank check.

[Robert Alt]

It is. And it's completely contrary to how the Constitution was written. There's a great case from the 90s where in the 90s there was a kind of a revolution reconsideration of these questions. And there were a series of cases where the Supreme Court started to dial back and say there's got to be

[Terry Kibbe]

some limits to this power.

[Robert Alt]

Whereas essentially between 1942 and 1995, the

[Terry Kibbe]

governing presumption was what Lola wants, Lola gets.

[Robert Alt]

Congress can do whatever it wants, doesn't

[Terry Kibbe]

even need to justify it. They just have general plenary power.

[Robert Alt]

In the 90s, there was a case, and Justice Thomas in particular, in a separate concurrence in that case, Lopez walks through and you know, I commend your listeners, pull up the Constitution, take a look at Article 1, Section 8, and see if you can make it through

[Terry Kibbe]

that list without falling asleep.

[Robert Alt]

I mean, they go into excruciating detail about what Congress can do, can establish postal Roads can coin money, all these things. And as Thomas says, look, if the commerce clause was as broad as we've

[Terry Kibbe]

claimed, we here on the Supreme Court

[Robert Alt]

have claimed it is.

[Terry Kibbe]

Why did the founders waste time listing out all these little powers? All of those things would substantially affect interstate commerce.

[Robert Alt]

Obviously it can't be that broad.

[Terry Kibbe]

It can't be this catch all that does everything that the they're claiming.

[Robert Alt]

We don't interpret the constitutions like they're just putting in a lot of extra

[Terry Kibbe]

words that have no meaning.

[Robert Alt]

And that's functionally what would happen if

[Terry Kibbe]

you read it this way.

[Robert Alt]

So we had a couple of cases that were good started to dial back power. First one was gun free school Zones Act. Carrying a gun in a school zone may be something that people want to regulate, but it's not commerce and it's certainly not interstate commerce. There was another case involving tort claims which weren't commerce, but then we hit a bump in the road. And that bump in the road was

[Terry Kibbe]

about 20 years ago, a case called Raish.

[Robert Alt]

So Raish involved homegrown medical marijuana, which

[Terry Kibbe]

had become legalized out on the west

[Robert Alt]

coast, but was still illegal federally. And the case goes up to the Supreme Court. And the Supreme Court court says it

[Terry Kibbe]

can be regulated because it's necessary and proper to the larger controlled substances regulation. There's a comprehensive scheme of regulation in which Congress was seeking to eradicate the

[Robert Alt]

market in certain narcotics. And with that case, essentially the entire movement to set limits on congressional authority under the Commerce clause largely ground to a halt. One other sort of detour along the

[Terry Kibbe]

way was the Obamacare case on that,

[Robert Alt]

interestingly enough, Commerce clause came out correctly.

[Terry Kibbe]

The court said, we can't force you to buy something under the Commerce clause.

[Robert Alt]

We can't force you to buy insurance.

[Terry Kibbe]

But then upheld it under the taxing authority.

[Robert Alt]

So all of this is to say, you know, we've kind of grown stagnant in terms of litigation. And this case presents the twin opportunities, one, to really critically reconsider the Commerce clause and the authority that Congress has under that, but also the taxing authority. Can they. Can Congress use the taxing authority for something that really has nothing to do with collecting a tax and has everything to do with regulating what you do in the privacy of your own home? And so looking at, for instance, what could Congress regulate if in fact their interpretation, the Justice Department's interpretation, the Treasury Department's interpretation of their power is correct? Right now, many people listening are working from home. You could potentially have the federal government say, we're Going to prohibit working from home, because we think that that contributes to tax evasion. Just absolutely absurd. You can't, you know, you could prohibit, you know, for instance, hobbies like working on your car, because ultimately that substantially

[Terry Kibbe]

would impact the market for automobile repair.

[Robert Alt]

There's almost nothing that you do within the privacy of your home that would

[Terry Kibbe]

be beyond the authority of the federal

[Robert Alt]

government, and that just can't be right.

[Matt Kibbe]

Yeah. So the adversary on that point. The adversary, I don't know what the legal term is, but you're. I guess the government is the defendant in these cases. Is that the right term? And, of course, it doesn't matter if it's the Obama administration or the Biden administration or the Trump administration. The Justice Department is defending the principle of expansive federal power. Is that an accurate way to characterize where we are?

[Robert Alt]

Yes, it is interesting that it almost doesn't seem to matter who the administration is. The Department of Justice generally has a

[Terry Kibbe]

duty to defend federal statutes if there's any plausible argument that can be made.

[Robert Alt]

I do feel like, at times, more

[Terry Kibbe]

progressive administrations are willing to cut deals with their friends. I feel like administrations that are closer to our side are far less likely to enter into agreement, so they end up just defending.

[Robert Alt]

I've got a number of cases, and

[Terry Kibbe]

you couldn't tell that there'd been any change just based upon how the government is responding in the litigation.

[Matt Kibbe]

But it should be obvious now that the courts are the only path to fixing this problem. Thinking about sort of classic public choice problems that would prevent legislation. Big Liquor, the distributors, they're omnipresent on Capitol Hill.

[Robert Alt]

Well, and you just look at how

[Terry Kibbe]

sclerotic Congress has become.

[Robert Alt]

Not too long ago, someone brought to

[Terry Kibbe]

my attention there's a law professor who found an anomaly in the law.

[Robert Alt]

There's an area out west where there's

[Terry Kibbe]

a legal no man's land.

[Robert Alt]

The state does not have jurisdiction over

[Terry Kibbe]

this particular territory, and the federal government doesn't have jurisdiction over the territory. It's just a bizarre thing in terms of how the laws have been drawn up.

[Robert Alt]

And so in this space, there's no law against murder, for instance. There's no federal or state statute that

[Terry Kibbe]

would apply in this particular space. So he writes an article, draws it

[Robert Alt]

to attention, and thinks this has got

[Terry Kibbe]

to be the easiest thing in history to get a consensus on to fix this problem.

[Robert Alt]

And my understanding is it's been years it's been presented to Congress, and he's

[Terry Kibbe]

gone up and talked about it, and

[Robert Alt]

nothing has been done. If you can't get action on something like that.

[Terry Kibbe]

It's almost impossible to get Congress to

[Robert Alt]

address an issue like this, which affects many, many Americans. But there's just government has become so

[Terry Kibbe]

dysfunctional at the federal level in terms of getting anything meaningful done.

[Narrator/Host Intro]

Thank you for joining me today on Kibbe on Liberty and for being part of our fiercely independent audience. Every week, my organization, Free the People, partners with BlazeTV to bring you this show. My guests bring smart perspectives on everything from current events to timeless film philosophical debates. If you like what you hear, go to freethepeople.org kol and support Kibbe on Liberty so we can continue to produce these honest conversations with interesting people. Now, let's get back to it.

[Matt Kibbe]

I asked Grok about this before we had this conversation. And to your point about Jimmy Carter and the freeing of home distilling that then allowed for local craft brewery projects to sell directly to consumers. And it created a wave of innovation and has also allowed for a much more decentralized, consumer friendly, choice based. I can get triple IPAs, and I'm pretty sure I couldn't before Jimmy Carter did that. But alcohol, and probably including this Hemingway rye we're having, is very centralized and that affects quality, that affects price. It also affects community because I've been to John's Brewery, Trek, and as you know, you've been there many times as well. It's not just about the beer. The beer is perfectly crafted and I'm super picky about this. And he, he makes beautiful beers. But it's really a community gathering place. It's a place you bring your families on Sunday. And that part of this should not be understated because, you know, so much of what holds America together is our ability to gather like that. I think it's an essential thing, particularly in these difficult times of hyper partisan where everybody gets canceled for just having a different opinion about this. So again, the burden on you is tremendous. You have to free American distillers to create. You have to shift this entire legal precedent on the commerce clause and maybe in the process free us up to have better whiskey.

[Terry Kibbe]

Well, I couldn't agree more on the community aspect. I mean, you look back in American

[Robert Alt]

history and taverns were the gathering places.

[Terry Kibbe]

It's been that throughout history. And you're right, John Ream is a classic example. His brewery is a place where families gather. He's got an area for kids. They've got a great outdoor space.

[Robert Alt]

And he gives back. Not just there, but he's run the business in such a way he gives

[Terry Kibbe]

back to the Community charitably is fully engaged.

[Robert Alt]

So this is the sort of thing

[Terry Kibbe]

we should be encouraging, we shouldn't be

[Robert Alt]

throttling this sort of innovation.

[Terry Kibbe]

And absolutely, with regard to the craft

[Robert Alt]

brewery, just the sheer know the experimentation

[Terry Kibbe]

that you've seen that's led to unique craft brews that we all enjoy. Now I'm confident that if we actually allowed home distilling that you would see this kind of experimentation.

[Robert Alt]

As you noted, you know, it's kind of interesting over in Scotland you've got all these different interesting whiskey finishes.

[Terry Kibbe]

I'm a big fan of Bruklatti scotches and they years ago had begun experimenting with different finishes. And you see that with a lot

[Robert Alt]

of different distilleries over there, but not so much in the US you're starting to see a little bit of it, but not that hasn't been as common in American whiskey. But that's the sort of thing I

[Terry Kibbe]

would think you would see all the time if you allowed people to experiment in their basement.

[Robert Alt]

Americans are great at experimenting in their basement and in their garages. And some of the most amazing products

[Terry Kibbe]

that the world, world knows today were

[Robert Alt]

made in someone's basement or garage. Why is it we're stopping people from doing that?

[Matt Kibbe]

So tell me what else is going on at Buckeye? What are other fights that you're up to your neck in right now?

[Robert Alt]

So another big fight we're involved in is protecting donor privacy. So I feel like if there's anything outside of alcohol law. I've talked to you before about defending bar owners here in D.C. obviously we're defending would be home distillers. We also defend individuals privacy. I think one of the most UN

[Terry Kibbe]

American

[Robert Alt]

regulations in the country is that the IRS collects the names of every major donor in the country and warehouses them indefinitely. So if you give money to a

[Terry Kibbe]

501 nonprofit organization and you are considered under the law a substantial contributor, the

[Robert Alt]

IRS requires that charity, that nonprofit to provide the IRS with a list of those donors. It is supposed to be non public.

[Terry Kibbe]

So you know, for instance, if you, if you were to pull up the Buckeye Institute's 990, you can find it online. It's every charity is required to put that information online.

[Robert Alt]

You will see where schedule B is. That's the, the schedule donors, that's redacted. But we still have to provide that information, that donor list to the irs. And the unfortunate thing is of course the IRS being the irs, mischief ensues. And so there's multiple instances in which there have been Deliberate or accidental leaks of this information, where they have misused this information in ways. If you wanted, if you were a bad actor within the government and wanted to have an enemies list, name a controversial issue, the country. For gun rights, against gun rights, for abortion rights, against abortion rights, for Israel, Against Israel, for, you know, whatever the case may be, you've got a list at the IRS of the major contributors, the people who are heavily involved in that issue. And so a few years back, the state of California began requiring any charity

[Terry Kibbe]

doing business in the state to turn over this non public schedule B, the

[Robert Alt]

list of donors, and then began to mishandle it. Over 100,000 of these returns were made

[Terry Kibbe]

available on the Internet, put it in danger quotes.

[Matt Kibbe]

Mishandle.

[Terry Kibbe]

Yes, exactly.

[Matt Kibbe]

Surely unintentional.

[Robert Alt]

Absolutely. I'm sure that there was no malice, there was no political agendas. Of course not. Of course not. So the case goes up to the US Supreme Court. Buckeye was heavily involved as an amicus there. Supreme Court says no, California can't require this information and so strikes down California's policy. But California was just collecting the information that the IRS already was requiring the

[Terry Kibbe]

these nonprofits to provide.

[Robert Alt]

Now a number of years ago, the Buckeye Institute was subjected to a full

[Terry Kibbe]

field audit by the irs. It happened to be six weeks after we had defeated Obamacare's Medicaid expansion in Ohio, at least for a time. It ended up, the politicians ended up doing an end run and getting it later anyway.

[Robert Alt]

But we temporarily killed it.

[Matt Kibbe]

I'm sure the timing was purely coincidental.

[Robert Alt]

That's what that is. In fact, what the IRS told me when we sat down for the audit. It was very funny. My accountant, God bless him, was just sort of could not understand. He's like, I've been an accountant in central Ohio for three decades.

[Terry Kibbe]

I sit on all these committees.

[Robert Alt]

I've never seen a 501c3 nonprofit subjected

[Terry Kibbe]

to a full field audit.

[Robert Alt]

Can you tell me why you're auditing the Buckeye Institute? And this followed on multiple conversations where he just didn't understand. He looked at our books. He's like, there's nothing in here that would trigger an audit. I don't understand. And the agent said, well, it's purely

[Terry Kibbe]

random and if it weren't, I couldn't tell you.

[Matt Kibbe]

And if I did tell you, I'd have to kill you.

[Terry Kibbe]

Yeah.

[Robert Alt]

But in the course of that, we had donors who logically were very concerned. Some of them stopped giving. Some of them started giving through DAFs in order to take, take advantage of the privacy provisions there? Some actually. I had a donor who called me up and said, you are going to get an envelope with cash in the mail and it's not going to have a return address. No, it's from me. Please do not give me a receipt. I do not want any record of it.

[Terry Kibbe]

I just want to help you.

[Robert Alt]

You're doing the right thing.

[Terry Kibbe]

I want to help you, but I

[Robert Alt]

don't want to be a target of the irs. So Buckeye was kind of in a unique position because we can show how these different disclosure requirements impact real world donations, impact how people are willing to

[Terry Kibbe]

associate with nonprofit organizations.

[Robert Alt]

So we have filed a challenge to the requirement that The IRS has 250 individuals and organizations across the country. Everyone from People for the Ethical Treatment of Animals to the U.S. chamber of Commerce have filed briefs in support of the Institute. And we have oral arguments coming up here soon in the sixth Circuit Court of Appeals. So that's. It is probably the biggest donor privacy case in the country.

[Matt Kibbe]

By the way, remind people, and I think this is right, having been in the nonprofit space a good chunk of my career, that the. The origins of donor privacy for 501c3s go back to the civil rights movement.

[Terry Kibbe]

Yes.

[Matt Kibbe]

And. And the government's sort of wanton targeting specifically of Martin Luther King's nonprofit. And isn't that the origin of these special privacy provisions for nonprofits?

[Robert Alt]

Yes. I mean, the leading case on this is NAACP versus Alabama, in which Alabama sought to get access to the supporters of the naacp. And it's interesting because I think a lot of people looked at that and thought this was about sort of getting individuals to target in Alabama. My understanding of the historical record is Alabama was really trying to chill support

[Terry Kibbe]

for the NAACP even outside of Alabama,

[Robert Alt]

which is to say there were individuals who maybe enjoyed their fancy country clubs in New York who were giving to the NAACP privately but wouldn't necessarily want this to be publicized. And Alabama knew this and knew if they ended up shining a light on it might chill the ability of the

[Terry Kibbe]

NAACP to raise money.

[Robert Alt]

And the U.S. supreme Court said, no, the state doesn't have. They have to meet a heightened scrutiny. They have to show sort of legal definition, a damn good reason if you're

[Terry Kibbe]

going to chill speech in this way. And they hadn't shown a sufficient reason.

[Robert Alt]

So that's really the origins of this and that the Supreme Court relied upon

[Terry Kibbe]

that in the California case. And functionally that's what the district court in our case said should be the standard that applied.

[Robert Alt]

So that in many ways is what we are arguing over whether or not

[Terry Kibbe]

you have to show, put in simple terms, a damn good reason to get that information.

[Matt Kibbe]

So I'm thinking of. So I've produced this show called the COVID up for BlazeTV and the second to final episode was with Matt Taibbi. And I don't know if you know this story, but Matt Taibbi is intimately involved in the Twitter files. And we're exposing what is obviously a government driven censorship industrial complex trying to stop stifle speech. He's testifying before Congress. This is during the Biden administration. And the same day the IRS knocks on his front door and leaves a note. And the note basically says we need to talk to you. And then he doesn't hear from them. But to show up on his front door on that day seems a little on the nose. Even more so perhaps than six days after your success in the courts. But you know, taxation is a weapon.

[Terry Kibbe]

The old saying, the power to tax is the power to destroy. And I'm just hoping that the court actually adheres to.

[Robert Alt]

There was a court opinion in which the court pushed back and said that power to tax is not the power to destroy. As long as the courts are open.

[Matt Kibbe]

Yeah.

[Robert Alt]

And I suppose open and doing their job. But I think it goes to. There's been enough misuse and abuse by the IRS by both sides the idea that we should be housing and warehousing this kind of information. And one other footnote, the IRS has conceded themselves essentially that they don't need this information for enforcement purposes. During the first Trump administration,

[Terry Kibbe]

they engaged

[Robert Alt]

the IRS engaged in rulemaking to repeal this donor disclosure requirement for 501 organizations.

[Terry Kibbe]

Not to get too much into the weed, but these are the action organizations.

[Robert Alt]

And the requirement that the 501s put this information on their 990 return was

[Terry Kibbe]

a regulation of the IRS.

[Robert Alt]

And so it was something that the IRS could repeal.

[Terry Kibbe]

Whereas the application to regular charity C3s that is statutory.

[Robert Alt]

So either Congress has to repeal it

[Terry Kibbe]

or the court has to strike it down, one or the other.

[Robert Alt]

But in the case of the regulation, in the course of rulemaking, the IRS said look, we can't even use the information on the schedule be as part

[Terry Kibbe]

of audits of individuals.

[Robert Alt]

And I think that's what most people thought that it was there for.

[Terry Kibbe]

So you know, if you, Matt Kibbe were a major donor to some cause

[Robert Alt]

and you got audited, the thought was, okay, well the IRS will just go

[Terry Kibbe]

ahead and pull up, you know, this

[Robert Alt]

year the charity's 990 and see if

[Terry Kibbe]

you're actually listed on there.

[Robert Alt]

Well, they don't. On that schedule, it does not include taxpayer identification numbers. So the IRS conceded we can't even use that information. We don't ever do name matching because that's too imprecise. It has to be a taxpayer ID or a Social Security number that we use for tracking. It's why when you file your tax return, if you want to get it returned to you, the fastest and easiest way to do that is not to put your Social Security number or tax ID number that will get it automatically bounced because this, that's how they know it's you. And so the fact that you know, so they're collecting all this information that they can't even use for audit enforcement purposes, but it's very valuable for nefarious purposes, for mischief. So it's just, it's a terrible policy that we're collecting and warehousing this information

[Terry Kibbe]

for no good reason.

[Matt Kibbe]

So what's the timing? John Ream's case and this case, what's the timing? Timing? When. When might we see resolution?

[Robert Alt]

So the, the two cases on home distilling just recently decided. We've got about 90 days in our case to appeal to the Supreme Court. And on the flip side, the Justice Department of 5th Circuit is in the same boat. So given that, you know, briefing probably over the summer, we would look to here in the early fall, very likely whether or not the Supreme Court will take the case. As I said, I feel like, you know, one never wants to predict in this situation. It's, you know, getting a Supreme Court grant is something like a lightning strike. But the, you know, between having a federal statute struck down and a circuit

[Terry Kibbe]

split, this is kind of a perfect storm.

[Robert Alt]

I think it's highly likely we get Supreme Court review, which point oral argument sometime between October, October and June. And I would anticipate the decision probably at the very end of the next Supreme Court's term.

[Terry Kibbe]

That would be late June of 2027.

[Matt Kibbe]

All right, so hopefully maybe not next time because it takes a while to make a proper whiskey, but hopefully sometime in the future we'll be drinking John Ream's locally crafted whiskey. I guess I'd be breaking interstate commerce clause by sneaking it into D.C. well,

[Robert Alt]

you know, maybe we'd have to do a special Kibbe on Liberty on site from Trent Brewing.

[Matt Kibbe]

I think that's the plan. It'll be the equivalent of my dream of doing drunk economics and perhaps your dream of doing drunk law live on camera.

[Terry Kibbe]

Absolutely. All right.

[Matt Kibbe]

Cheers.

[Robert Alt]

Cheers.

[Narrator/Host Intro]

Thanks for watching. If you like liked the conversation, make sure to like the video, subscribe and also ring the bell for notifications. And if you want to know more about free the people, go to freethepeople.org.