Ensconced at Brookings and Georgetown, opining twice weekly at the Washington Post, and a frequent PBS/NPR voice, E.J. Dionne is your quintessential inside-the-beltway liberal. His column this morning, “Government is the solution,” doesn’t disappoint. Democrats should “just say it,” he argues. If they really believe in government, then stop beating around the bush, apologizing, qualifying. Look at Gov. Scott Walker’s win last week in Wisconsin, “helped by the continuing power of the conservative anti-government idea in our discourse. An energetic argument on one side will be defeated only by an energetic argument on the other,” he counsels.

Trouble is, it’s not just the energy, or the clarity: It’s the argument. As we say in horse racing, no matter how good the jockey, he can’t carry the horse across the finish line. And the government horse has a pretty bad track record.

You’d never know it, however, from the rest of Dionne’s exhortation. Going back to the nation’s beginnings he invokes Hamilton’s and Clay’s road and canal building projects — they who “read the Constitution’s commerce clause as Franklin Roosevelt and progressives who followed him did, as permitting the federal government to serve the common good.” Alas, Dionne’s constitutional history is amiss. In his 1791 “Report on Manufactures,” which Congress rejected, Hamilton invoked not the Commerce but the General Welfare Clause. And the canal projects, like the railroad projects 20 years later, involved improvident donations of government land, under Article IV’s Lands Clause, resulting in the panics of 1837 and 1857, respectively, all of which is nicely documented in Harvard Law Prof. Charles Warren’s wonderful little volume, aptly entitled Congress as Santa Claus, published in 1932, on the eve of the New Deal.

But it doesn’t get any better when Dionne turns from law to economics. Here his main point is to urge Democrats to say that “government creates jobs.” Thus, he writes that it was “salutary that Douglas Elmendorf, the widely respected director of the Congressional Budget Office, told a congressional hearing last week that 80 percent of economic experts surveyed by the University of Chicago’s Booth School of Business agreed that the stimulus got the unemployment rate lower at the end of 2010 than it would have been otherwise.” Who could argue with that? Indeed, more stimulus spending would have lowered the rate even further: there was no unemployment in the Soviet Union, if you want serious stimulus spending.

The point is that government spending is not cost-free. The money comes from the private sector now, where it might otherwise be employed creating private-sector jobs, or is borrowed from the future. And it’s no answer to contend, as Dionne does, that we need government “investments” in such things as transportation and clean energy (high speed rail? “green fuel” requirements for the Defense Department?) because “the private sector is no longer investing” and hence no longer creating jobs — not if you ignore the massive regulatory uncertainty that is impeding private-sector investing. But what’s any of that to someone who believes that “government is the solution.”

No, I’m not talking about Guantanamo or interrogation techniques or anything else related to national security. I’m talking about various unconstitutional actions by administrative agencies and law enforcement that ultimately resulted in unanimous defeats at the Supreme Court, as I described in my Wall Street Journal op-ed.

That analysis — focusing on cases decided this year in the areas of religious liberty (Hosanna-Tabor v. EEOC), criminal procedure (U.S. v. Jones), and property rights (Sackett v. EPA) – has generated plenty of positive reaction from a variety of perspectives. One criticism that I’ve seen a few times, however, is that I’m being disingenuous because in all three cases I dissect, the DOJ was merely defending actions and policies that originated when George W. Bush was president. “The Solicitor General, who is the government’s top lawyer, has, in almost all cases,” notes Media Matters, “an obligation to defend government actions and federal laws, including those actions undertaken by previous administrations.”

There is some validity to this point: Hosanna-Tabor did indeed involve an employment discrimination lawsuit filed by the EEOC during the Bush administration; Sackett involved an order issued by the Bush administration’s EPA; Bush’s Justice Department instigated the federation prosecution at issue in Jones.

Of course, these lower-level administrative actions probably didn’t reach the radar screens of actual Bush-era political appointees and policy makers — bureaucrats will do their own thing, trying to expand their own power regardless of who’s in the White House — and DOJ lawyers who actually represent an administration’s legal policy typically aren’t involved until the appellate stage (under Obama in these cases). But even if they had here, that doesn’t somehow excuse Obama’s Justice Department, which made dangerous legal arguments betraying an incredibly expansive view of federal power, ones that didn’t gain a single vote at the Supreme Court. Bush attorney generals John Ashcroft, Alberto Gonzales, and Michael Mukasey (or solicitor generals Ted Olson, Paul Clement, and Greg Garre) weren’t the ones filing these briefs.

Moreover, while the solicitor general’s office does indeed have the duty to make the strongest plausible legal arguments supporting federal laws, that doesn’t mean that the Obama administration as a whole was handcuffed. The solicitor general (be that Don Verrilli or his predecessors, Neal Katyal and Elena Kagan) could’ve decided not to seek Supreme Court review of cases that were clear losers for the federal government. Or he, along with his boss, Attorney General Eric Holder, could’ve settled the cases and worked to change the EEOC, EPA, and FBI policies that led to the unconstitutional actions.

Or, indeed, if the administration really thought that there were no less-ridiculous arguments to be made, President Obama could’ve instructed DOJ officials not to defend these cases any further — as he did with the Defense of Marriage Act.

Finally, even if the Bush administration had acted exactly the same way, making exactly the same legal arguments (impossible to imagine in Hosanna-Tabor and Sackett, at least), two constitutional wrongs don’t make a right. And I don’t think President Obama’s defenders really want to rely on the argument, “All administrations regularly violate the Constitution and get reversed 9–0 by the Supreme Court.”

In sum, I’ll stick with my claim that the legal arguments the Obama Justice Department has made before the Supreme Court “don’t pass the smell test” and constitute a fundamentally flawed vision of federal power.

Happy Birthday to my friend and Cato senior fellow Nat Hentoff. He turns 87 today, but he’s busier than ever with book and article deadlines.

Let’s take a quick look at his work. This week New York Governor Andrew Cuomo proposed a measure to rein in marijuana stops, arrests, and convictions in New York City. Nat Hentoff was sounding the alarm on that problem years ago!

Here he relates his encounter with Che Guevara:

Rep. Tom McClintock (R‑CA) introduced three amendments to the recently passed Energy & Water appropriations bill that would have eliminated a slew of business subsidies at the Department of Energy. Unfortunately, House Republicans once again teamed up with their Democratic colleagues to keep the corporate welfare spigot flowing.

From The Hill:

The largest spending cut proposal came from Rep. Tom McClintock (R‑Calif.), which would have eliminated the Energy Efficiency and Renewable Energy account at the Department of Energy and used the $1.45 billion in savings toward deficit reduction. Like other Republicans, McClintock argued that this account needlessly spends money on questionable private investments that have not led to any measurable returns. But the House rejected McClintock’s amendment in a 113–275 vote, in which 113 Republicans voted for it but 107 Republicans joined every Democrat in opposition.

From a second article from The Hill:

Rep. Tom McClintock (R‑Calif.) proposed ending all nuclear energy research subsidies to private companies, which would have saved $514 million and used that money to lower the deficit. But the House rejected that amendment in a 106–281 vote that divided Republicans 91–134. McClintock also proposed language cutting fossil energy research subsidies, which would have saved $554 million. But the House killed that amendment 138–249, as Republicans split again 102–123.

A few comments:

First, Democrats voted overwhelmingly to continue to subsidize commercial interests. And here I thought Democrats were concerned about the have and have-nots.

Second, Rep. McClintock deserves a round of applause for his efforts. These votes speak volumes about a member’s beliefs about the proper role of the federal government. A lot of members—especially Republicans—talk a good game when it comes to spending, limited government, free markets, etc. However, when the time comes to put their money where their mouths are, many choose to instead put other people’s money in the mouths of special interests.

For those taxpayers who are interested in seeing how their member voted, the following are the roll call tallies for McClintock’s amendments:

• Reduce the energy efficiency and renewable energy account by $1.45 billion: http://​clerk​.house​.gov/​e​v​s​/​2​0​1​2​/​r​o​l​l​3​1​1.xml.
• Reduce the construction and expansion account of nuclear energy by $514 million: http://​clerk​.house​.gov/​e​v​s​/​2​0​1​2​/​r​o​l​l​3​1​5.xml.
• Reduce the fossil energy research and development account by $554 million: http://​clerk​.house​.gov/​e​v​s​/​2​0​1​2​/​r​o​l​l​3​1​7.xml.

[See here for more on why energy subsidies should be eliminated.]

Update: Steve Ellis from Taxpayers for Common Sense alerted me to an amendment introduced by Dennis Kucinich (D‑OH) and McClintock that would have shut down the Department of Energy’s Title 17 loan guarantee program. That’s the program that gave us Solyndra. The amendment failed 136–282 with 127 Republicans joining 155 Democrats to defeat the amendment. That the Republican-led House couldn’t get rid of the program that begot Solyndra is about as low as it gets.

When high school student Dawn Loggins was abandoned by her parents, the people in her North Carolina community moved in to take care of her. They didn’t want her to be turned over to the state child welfare agencies. For her part, Dawn performed janitorial work before and after school, while getting top grades. She is now on her way to study at Harvard. CNN has the story. It’s a remarkable example of what Charles Murray calls the “tendrils of community.”

The Washington Post reports:

For 14 months, a bipartisan group of 17 states has been quietly collaborating with the Obama administration to help build a foundation for the health-care reform law’s success.

The group includes some of the law’s staunchest supporters working alongside a handful of its bigger detractors. They are backed by $3 million in funding from eight nonprofit organizations that hope to see the Affordable Care Act succeed.

Together, they have come up with a tool to help consumers navigate the health insurance exchanges—the marketplaces that each state is required to have by 2014.

In other words, at the same time Alabama, Arizona, Colorado, and Kansas are suing to overturn Obamacare as unconstitutional, officials in those states are helping to implement the same unconstitutional law.

The Post reports, without rebuttal, several myths about the states’ role under Obamacare. It refers three times to the “tight deadlines” states face under the law. (There are no deadlines. HHS has said that if states decline to create exchanges, they can change their minds later.) It claims, “If a state does not have a framework in place by 2013, the Department of Health and Human Services will come in and do the job itself.” (That’s highly questionable. Obamacare appropriates zero funds for federal exchanges and HHS has admitted it doesn’t have the money.) It quotes Kansas insurance regulator Linda Shepphard as saying, “There is no work being done to build an exchange in Kansas at this point.” (Well, which is it? Is Kansas doing “no work,” or is it “collaborating with the Obama administration”?) I’d say certain state officials got some ’splaining to do.

In the video below the jump, I explain to state officials why flatly refusing to create an Obamacare exchange is the best thing they can do for their states.