Former U.S. senator Malcolm Wallop (R‑Wyoming) passed away on Wednesday at age 78. The Washington Post obit for him has a quote from one of his Cato appearances:

Sen. Wallop was unapologetically conservative as a Republican, a position that sometimes drew ire from members of his own party.

“Too many Republicans prefer to be a Democrat Lite,” he said in a speech at the Cato Institute in 1994. “As any beer connoisseur can tell you, Lite is a tasteless, repugnant concoction.”

Way before the Tea Party came along, he penned a scathing and wide-ranging critique of the expansive growth of the federal government in the February 1994 issue of National Review, “Can Conservatives Take America Back?” That article is well worth rereading. Unfortunately, no on-line link seems to be available, but perhaps that will change soon.

Wallop also spoke out against federal power-grabs that came in antiterrorism packaging.

The Washington Examiner reports:

Six of [the Washington-area mass transit system] Metro’s top executives are assigned agency-owned vehicles that they can drive home, the transit system acknowledged Tuesday, one day after saying none of them had take-home vehicles.

That is in addition to the 116 Metro employees who receive take-home vehicles, including 88 managers and superintendents, first reported by The Washington Examiner.

I wonder if executives and managers at automobile companies get free subway passes?

The Obama administration contends that its mandate to purchase health insurance is “necessary and proper” to effect PPACA’s comprehensive scheme of interstate health care regulation. The constitutional argument is two-part: First, the Commerce Clause empowers Congress to regulate interstate health care. Second, the Necessary & Proper Clause empowers Congress to implement health care regulation by directing individuals to acquire medical insurance or pay a penalty. The administration concedes that the underlying purpose of the mandate is to subsidize insurance companies so they can afford to cover pre-existing conditions, which PPACA commands.

Consider the text of the Necessary & Proper Clause. It authorizes Congress “To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States.” For example, Congress’s power to spend—which is not expressly mentioned in the Constitution—is necessary for carrying into execution numerous other powers that entail the expenditure of money. Also, the Supreme Court has determined that Congress’s power to regulate intrastate commerce may occasionally be necessary for carrying into execution Congress’s enumerated power “To regulate Commerce among the several States.” Similarly, Congress’s power to establish a federal penal system may be necessary for carrying into execution Congress’s enumerated power “To provide for the Punishment of counterfeiting” and certain other crimes.

All those implied powers are instrumental. They afford a means by which other express powers can be carried into execution. By contrast, PPACA’s health insurance mandate does not carry into execution any express power, including the Commerce Power to regulate interstate health care. Indeed, health care regulation—even with its requirement that insurers cover pre-existing conditions—could have been implemented without the mandate, in which case insurance companies would have been compelled to raise premiums, cut other costs, or accept lower profits.

Instead of carrying health care regulation into execution, the mandate is designed solely to produce a specified outcome for the benefit of private insurers—i.e., to subsidize insurers so they don’t have to raise premiums, cut other costs, or accept lower profits. In other words, the mandate is simply a cost distribution scheme: a policy judgment having nothing to do with facilitating execution and everything to do with who pays the bill. Because the mandate relates to outcome and not process, it cannot be prerequisite for carrying into execution the Commerce Power. Accordingly, it cannot be authorized under the Necessary & Proper Clause, the sole purpose of which is to carry other powers into execution.

In a disturbing piece for Wired, my friend Spencer Ackerman reports on the appalling contents of training sessions on Isla

m delivered to FBI agents, which suggest that all devout Muslims ought to be considered as prone to violence and terrorism.

One comically amateurish chart even purports to graph the historical propensity for violence of the three main Abrahamic faiths. As you can see, Islam seems to rapidly plateau at a very high level of relative violence on some kind of made-up scale—though hard as I squinted, I couldn’t detect a blip in any of the lines around the 12th century that might correspond to the Crusades.

One presentation makes it quite explicit that, in the analyst’s view, the problem is not Islamic “extremism,” but the inherent propensity for violence of Muslims as such:

• There may not be a “radical” threat as much as it is simply a normal assertion of the orthodox ideology.
• The strategic themes animating these Islamic values are not fringe; they are mainstream.
• The individual applying these values and practices may likely be simply a pious and devout adherent: i.e., a true believer as opposed to a “radical.”

In other words, FBI agents are effectively told that Osama bin Laden was correct, and that a sincere Muslim who understands and practices his faith correctly will naturally be a terrorist. It would be offensive in any context for the government to sponsor this kind of smear session against the enormous peaceful majority of its Muslim citizens, but it’s downright dangerous in light of the vast expansion of FBI surveillance authorities over the past decade.

An agent in any of the FBI’s 56 field offices can issue National Security Letters demanding potentially sensitive financial, phone, and Internet records with only the approval of the office’s Special Agent in Charge. The agent need only assert that the records are “relevant” to an investigation to protect national security; there’s no need for any evidence that the persons under scrutiny are involved in wrongdoing, and normally no judicial involvement at all. Unsurprisingly, these requests are issued in massive numbers, with a record 14,212 Americans targeted by NSLs last year alone. Though the overwhelming majority will be cleared of suspicion, those records will remain in government databases for decades. FBI investigative guidelines, meanwhile, continue to be revised so as to give agents ever more latitude to “check out” people who might be worth investigating, expanding the scope of what agents may do without opening a formal investigation or even explaining or making a record of their actions.

These authorities are dangerous enough to civil liberties by themselves. But combined with the kind of “training” uncovered by Wired, they are a recipe for abuse. Imagine a fresh-faced Quantico grad charged with “connecting the dots” to preemptively ferret out terrorists before they strike. After having been told by the Bureau’s own appointed experts that devout Muslim faith—even of the “mainstream” variety—is inherently a strong predictor of jihadist violence, should we be surprised if some agents conclude it’s their duty to “check out” the conspicuously devout, just in case? The rule book may contain the requisite injunction about not targeting people solely on the basis of faith, but the clear message of these presentations is that piety is, in itself, grounds for suspicion. And the post‑9/​11 emphasis on “flexibility” over old-fashioned checks and balances makes it less likely that judges or supervisors will take note and intervene when misguided agents attempt to go too far.

In just four months during late 2008 and 2009, the FBI opened 11,667 “assessments” of people and groups, and went on to open 427 “preliminary” or “full” investigations on the basis of the information gleaned from those assessments. That’s an astonishing number of people put under FBI scrutiny, especially given how few of those inquiries appear to have borne any fruit. But if the Bureau is training agents to regard 2.5 million American Muslims as jihadis-in-waiting, maybe we should be relieved the number isn’t higher still.

Ezra Klein writes that “libertarianism fails in health care,” by which he means he has identified something he does not like: in a free society, no one would force you to purchase health insurance, whether for yourself or for others, from the government or from private insurers. Klein doesn’t like that, because of something neither of us likes: it means some irresponsible and/​or unfortunate people would end up with expensive medical bills or worse—dead.

But that is like saying, “The Yankees fail because they have a lousy third baseman.” (Do they? I have no idea.) It tells us nothing about how well the Yankees perform (how many lives Libertopia would save) on the mound (preventive care), at first base (primary care), in the outfield (acute care and new medical technologies), on double plays (care coordination), or by avoiding unforced errors (same). It tells us nothing about whether the Yankees’s left fielder plays shallow or the team otherwise adjusts to minimize the lousy-third-baseman problem (whether people would take better care of their health and more people would purchase health insurance), how well the Yankees perform at the plate (generating wealth, improving living standards, and reducing the cost of care to bring it within reach of the poor), or lots of other things that a free economy would do that I could graft onto this lousy simile.

Klein doesn’t even begin to examine how other ways of organizing health care, including our very own health sector, perform on any of these dimensions. And he certainly doesn’t tell us the score. All he tells us is what we already knew: that a free market isn’t perfect. Which is to say, he tells us nothing.

The details surrounding the $535 million government loan to Solyndra – the now-bankrupt solar energy company that had been the green apple of the president’s eye – are still emerging. It remains to be seen whether or not the Obama administration broke any laws when it pushed the loan out the door despite obvious problems with the company’s finances.

At the very least, the administration is guilty of wasting taxpayer money. In that regard, it’s no different than all the other administrations that have tried to tinker with energy markets. When the dust settles, Solyndra will take its place alongside other infamous federal energy boondoggles, including the Synthetic Fuels Corporation, the Clinch River Breeder Reactor, and the Superconducting Super Collider. (All of these and more are discussed in a Cato essay on federal energy subsidies.)

Congressional Republicans are salivating over the prospects of a scandal involving a key initiative of the administration. But Republicans should be careful when casting stones given their past and present support for energy subsidies. (Note to investigative reporters: Republican [and Democratic] governors like to hand out subsidies to businesses, which often backfire on taxpayers. I’d know.)

As the political circus over the Solyndra loan unfolds, let’s not lose sight of the fact that the more important question is whether taxpayers should be forced to subsidize energy companies to begin with. The Cato essay argues that they shouldn’t:

The private sector is entirely capable of performing research into coal, nuclear, solar, and alternative energy sources for itself. Businesses will fund new technologies when there is a reasonable chance of commercial success, as they do in every other private industry. Federal subsidies may even be actively damaging to our energy future by steering markets in the wrong direction, away from the best long-term energy solutions…

Policymakers often make grandiose promises, such as proposing to make America ‘energy independent’ or to convert the nation to a ‘green economy.’ Those visions don’t make any sense, but even if they did history shows that the Department of Energy would be incapable of putting them into place with any degree of competence. Federal energy schemes are often poorly managed and generate huge cost overruns, or they aim at objectives that make little economic sense[.]

Lots of media are reporting that a new poll from the Associated Press and the National Constitution Center shows that 53 percent of Americans believe that “the government [should] give legal recognition to marriages between couples of the same sex.” Google “gay marriage poll,” and you get 284 news items. Good. It’s news. Even though it’s just about what other recent polls have found. And even though 48 percent also said they supported a federal constitutional amendment to ban gay marriage, suggesting that at least 1 percent of respondents are as confused about their position as Rick Perry and Michelle Bachmann.

But the survey had much else in it, as well. In fact, here’s an interesting data point from the survey, released a day earlier than the gay-marriage results:

82 percent of respondents say “The Federal Government should not have the power to require all Americans to buy health insurance.”

That is, 82 percent of Americans oppose the central plank of President Obama’s health care policy, the one that’s roiling the courts right now and headed for the Supreme Court.

But Google “poll health care mandate,” and you get no national media results. It’s sorta like it didn’t happen. But it did, and Democratic campaign consultants have no doubt noticed it.

As usual, not everything in the poll was encouraging. 61 percent say they oppose “giving the President more power at the expense of the power of Congress and the courts,” but that’s down from 73 and 75 percent the past two years.