This new video from our friends at Cato about the growing IRS scandal is well worth five minutes of your time. Features the ACLU’s Michael MacLeod-Ball, David Keating from the Center for Competitive Politics, and Cato’s John Samples and Gene Healy (Gene’s column on the same subject is also worth reading). Click here if the video embedded below doesn’t work.

• A new technology called a “wearable robot” – basically a pair of robotic legs – enables paralyzed people to walk. As Vice President Joe Biden might say, this is a big deal. It will be ready for the market in about a year. But the real obstacle may be regulators, who have yet to approve the device.
• Street musicians in St. Louis, Missouri must audition in front of city officials before they can perform in public. (via Jacob Grier)
• In Swaziland, witches may no longer fly broomsticks more than 150 meters above the ground. The regulation is enforced by the country’s civil avaiation authority. The penalty for violators is R500,000 (South African Rands), which is equivalent to a little more than $54,000. Swaziland’s per capita GDP is $3,831. Strangely, there is no penalty for witches whose broomstick-flying adventures remain under 150 meters.
• Legislators in California and elsewhere are mulling a ban on 3-D printed guns.
• San Francisco appears poised to drop its long-running push to require radiation warning labels on cell phones. More on why cell phone radiation scares are hokum here and here.
• A 10-year old UK schoolgirl was reprimanded by police for drawing a hopscotch grid on a sidewalk. The officers claimed she was causing “criminal damage,” but let her off with a warning.
• Alabama has legalized homebrewing. It is now legal in all 50 states.
• Cato’s Ilya Shapiro with some good analysis of a bill that would rein in abuses of the Clean Water Act.

Another federal appeals court has ruled that President Obama’s so-called “recess appointments” to the National Labor Relations Board were unconstitutional because the Senate was not in recess at the time: “We hold that the Recess of the Senate in the Recess Appointments Clause refers to only intersession breaks.” So ruled the majority of a three-judge panel of the Third Circuit Court of Appeals, in its 2-to-1 ruling in NLRB v. New Vista Nursing and Rehabilitation. Generally, our Constitution’s system of checks and balances requires Senate approval of Presidential appointees, but this requirement, found in Article II’s Appointments Clause, contains an exception for temporary recess appointments made during “the recess” of the Senate.

The appeals court noted that other courts such as the Eleventh Circuit have permitted recess appointments not just in “intersession breaks” but also “breaks within a session (i.e., intrasession breaks) that last for a non-negligible time.” But President Obama’s “recess” appointments would not be valid even under that broader reading of his powers (as I previously explained).

Obama’s appointments of the NLRB members would be valid only under a still broader, radically expansive interpretation of the Recess Appointments Clause that would gut the Senate’s power to review Presidential appointments. The NLRB and the Obama administration argue that recess appointments can be made whenever “the Senate is not open to conduct business” — presumably including when the Senate goes home for the evening or even takes a lunch break — and even includes “periods in which the Senate holds pro forma sessions” but is not available to vote on nominations. This argument is of “recent vintage,” noted the appeals court, and is plainly contrary to the Recess Appointments Clause’s “meanings at the time of ratification” of the Constitution.

(The court’s opinion, issued on May 16, is quite lengthy: the majority opinion totals 102 pages, while the dissent runs 55 pages.)

In an earlier ruling in Noel Canning v. NLRB, the D.C. Circuit Court of Appeals reached the same conclusion as the Third Circuit, finding that there was simply no “recess” in existence to authorize the President to make these so-called recess appointments. In its January 25 decision, the D.C. Circuit also noted that Obama’s appointments were invalid for an additional reason: the Recess Appointments Clause only authorizes appointments to fill vacancies that “happen” during a recess, and even the Obama administration admits that the vacancies occurred before, rather than during, any recess.The Obama administration has recently filed a petition with the Supreme Court asking it to review and reverse the D.C. Circuit’s decision. Its petition contradicts prior administration claims by admitting that the D.C. Circuit’s ruling will, if allowed to stand, also invalidate other Obama administration “recess” appointments, such as the appointment of Richard Cordray to head the powerful Consumer Financial Protection Bureau (CFPB). Cordray’s appointment was as invalid as the NLRB appointments, since he was “recess” appointed by Obama during the same non-existent recess.

Earlier, the Obama administration had thumbed its nose at the D.C. Circuit, saying it would not fix the constitutional violation identified by the court, but rather would simply continue to defend 200 other NLRB decisions issued by the three invalidly appointed NLRB members as if those decisions were valid. It also had indicated that it would disregard the ruling’s binding ramifications for Cordray’s recess appointment, even though he was appointed on the very same day. Cordray’s “recess” appointment to the CFPB during a non-existent “recess” is one of several constitutional violations challenged in State National Bank of Big Spring v. Geithner, another lawsuit pending in Washington, D.C. That case, in which CEI is involved, also challenges provisions of the law that created the CFPB, the 2010 Dodd-Frank Act.

Have a listen here.

The bitter fight over Gina McCarthy, President Obama’s nominee for EPA Administrator, is headed to the Senate floor under a potential filibuster threat. Myron Ebell, Director of CEI’s Center for Energy and Environment, explains that the deeper cause of this political fight is a startling lack of transparency at the EPA that McCarthy is unlikely to fix.

News stories trumping junk science are common, but I expect better from Fox News, which claims to be “fair and balanced” and hosts great shows like STOSSEL. And they’ve run some of my commentaries, which I appreciate. That’s why I am perplexed by some Fox reports on environmental issues, many of which seem to peddle junk science pushed by activists at the Environmental Working Group (EWG).

For example, the other day Fox published a silly story from Prevention magazine on how chemicals found in popcorn cooked in nonstick pans might give you heart disease based on a single study that found a statistical association, which can occur by mere chance. How many other studies failed to find an association?  The article doesn’t bother to go there—rather, it says: “Scary? You bet.” The article does offer a weak qualifier, stating that “more research needs to be done to determine the specific relationship between PFOA [the chemical used in non-stick the pans] and cardiovascular disease.”

Another recent Fox-published article highlights EWG’s latest Shoppers’ Guide to Pesticides in Produce. Fox offers no  critical analysis of the activist groups’ crazy claims.

Yet EWG’s Shoppers’ Guide is a perversion of data that the U.S. Department of Agriculture (USDA) collects annually to measure traces of pesticides found on produce. Residue levels are always extremely low, and USDA and the Environmental Protection Agency both explain that the data demonstrates that levels are too low to pose significant health risks. Yet EWG lists healthy foods—such as apples—as “dirty” because they have a few extra parts per billion of trace pesticide residues. The response should be: Who cares?  The levels are too low to have an impact, and eating these foods is certainly good for your health.

EWG issues its guide every year and gets lots of press hits. I’ve written about it for Fox’s commentary section in the past,  on Townhall, and the Washington Times this year.

Rather than offering any insights, alternative views, or bothering to ask USDA about its data, Fox Business “reports“:

Eating pesticide-contaminated apples, strawberries and peaches is concerning regardless of the consumer’s age, it’s extremely worrisome because they tend to be children’s favorites, says Lunder. “It’s a concern for us because kids eat a lot of these, sometimes daily. [...] One of the best ways to avoid pesticides in your produce is to buy organic.

In addition to the pesticide levels being too low to have an impact, the claim that eating organic is healthier is simply not supported by the facts.  Stanford University recently debunked that claim in a study as have many others.

It’s one thing for Fox to publish commentary on these issues, but its news reports on environmental issues certainly could be far more fair and balanced.

In the below video, U.S. Rep. Ed Whitfield (KY-01) talks about the Environmental Protection Agency’s discriminatory practice of granting fee waivers to political allies and denying them to critics—a practice CEI Senior Fellow Christopher Horner recently made public. (Whitfield begins talking about the issue around the 1:17 mark.)

The state of Indiana regulates the temperature at which convenience stores may sell beer. Specifically, they must sell it at room temperature. Cold beer is forbidden. The law, unique to Indiana, is presumably motivated by temperance concerns. People can’t buy beer on the spur of the moment and it drink it cold right away. They have to take it home and refrigerate it first. Instead of instant gratification, people have to plan ahead. This promotes more responsible drinking habits, the thinking goes.

Then again, the law exempts wine sales. Any Indianan who wants to can buy a chilled bottle of wine from the local 7-11 and drink it immediately. Instead of keeping people sober, the law amounts in practice to discrimination against beer. Wine producers might not mind that so much, but nearly everyone else does.

Even so, a push to overturn the law in the legislature failed earlier this year. That’s why three convenience store chains are suing to overturn the law. The case is currently moving through federal court. An employee of one chain told WISH, a local television station:

“Thorton’s has not built a convenience store in Indiana since 2006,” said David Bridgers of Thorton’s convenience stores, “for the sole reason of its antiquated alcohol laws.”

So not only does Indiana’s warm beer law fail to promote temperance, it is directly hampering job creation in the state.

The plaintiffs also argue that Indiana’s room-temperature beer law is unconstitutional, violating the equal protection clause in two ways. One, the law only applies to convenience stores. Grocery stores and other types of retailers may sell cold beer. Different retailers shouldn’t be treated differently, they argue. Two, wine should not have an artificial competitive advantage over beer. Government’s job is to ensure that they compete as equals on level ground, not to tilt that ground unequally.

Scot Imus of the IPCA, a trade association for convenience stores, told a trade publication that “We are confident that the court will agree with us that it is not the job of government to pick winners and losers in the marketplace.”

Most Indianans are hoping he’s right.

Action is heating up on the next farm bill, as the Senate Agriculture Committee today completed its markup of their bill which will go to the Senate for consideration.  The House is scheduled to release its markup on Wednesday.  No surprise – the Senate bill is replete with subsidies and support programs that cost tens of billions of dollars.

Yesterday, in anticipation of the markup, eleven taxpayer and policy groups sent a letter to the House and the Senate with its listing of the “Terrible Twelve” – the twelve most egregious farm policies.  The groups urged policymakers to reform or eliminate these costly and distorting programs:

• Direct payments
• Federal crop insurance
• Shallow loss program
• USDA Trade Promotion programs
• Sugar program
• Diary Market Stabilization Plan
• Target prices
• Rural broadband
• Mandatory assessments
• Cotton program
• Ethanol’s Feedstock Flexibility Program
• Biomass Crop Assistance Program

Last week, a coalition organized by CEI sent a letter to policymakers urging reform of the U.S. sugar program, which costs consumers an estimated $4 billion a year in extra costs.

Amendments are likely to be introduced on the floor in both the House and the Senate to reform some of  these wasteful programs.  But the farm programs are a classic example of concentrated benefits and dispersed costs.   In addition, because nutrition and food stamp programs make up the majority of the costs of the farm bill, both urban and rural policymakers form an unholy bipartisan alliance to push farm bills through.  Bipartisanship isn’t all it’s cracked up to be.

Daily Beast blogger Justin Green, who blogs on columnist David Frum’s Daily Beast blog, has responded to Wired’s recent article “Biometric Database of All Adult Americans Hidden in Immigration Reform.” Green thinks that there is no reason for concern, writing that “fortunately, Wired’s assertion is false.” Unfortunately, he has been misled.

First, Green claims that biometric information is being collected, but “those affected are unauthorized aliens, not American citizens.” But this is incorrect. The E-Verify database will affect every single U.S. citizen who is a potential worker. Given the fact that the database will include photographs, it is biometric. Green responds by quoting an anonymous Senate aide telling him that photos aren’t “biometric” by any “reasonable definition.” This might just be semantics, but as identification expert Jim Harper notes in his book Identity Crisis:

Biometrics measures the distinct traits that people have on their bodies. Examples of physiological biometrics are all the things we think of most commonly as physical identifiers–hair color, eye color, sex, skin color, height, weight, and so on.

In other words, a picture contains a host of biometric information about you, not just one piece of biometric information. Is this an uncommon or “unreasonable” definition? Well, I think the standard for reasonable or common usage would be Wikipedia, which defines biometrics as “identifiers are the distinctive, measurable characteristics used to label and describe individuals.” Under this definition, photographs would also apply, and in an age of facial recognition software, it would certainly not be difficult to take a picture of an individual and use it to find them in such a database.

Never mind how experts or the general public use the word, the phrase biometric identification has a specific legal definition. Under 46 USC 70123, “the term “biometric identification” means use of fingerprint and digital photography images and facial and iris scan technology and any other technology considered applicable by the Department of Homeland Security.” In other words, the government itself defines photographs as biometric identification.

Second, Green claims that “the Wired article is also aggressively misleading in stating that the photo tool will include ‘photographs of everyone in the country with a driver’s license or other state-issued photo ID.’” He again quotes the anonymous Senate aide, saying that Congress cannot “simply mandate individual states to just turn this information over to the federal government, that would be unconstitutional under US v. Printz.” Instead, the bill provides for states to enter into agreements with the federal government.

The Senate aide is correct, so Wired’s claim is actually a prediction rather than a provision in the bill. But it’s unlikely to be proved wrong. It is hard to imagine that states will refuse the $250 million offered to them by the bill in exchange for the photos. Already, states like Florida and Mississippi are handing over driver license and state ID information to the federal government voluntarily. It is implausible to imagine that other states would turn down millions of dollars in exchange for a few photographs.

If your photo isn’t in the database yet, the bill provides for an open-ended “identity authentication mechanism.” Although the bill doesn’t describe what this is, Green seems to think that the prospect of providing, for example, “detailed biographical information” to the government is somehow privacy enhancing—I beg to differ.

Finally, I was quoted in the article as saying that “the most worrying aspect is that this creates a principle of permission basically to do certain activities, and it can be used to restrict activities. It’s like a national ID system without the card.” Green simply asserts “Except it isn’t,” and then says the bill prohibits a national ID card. But so what? If government officials can look you up in a database with two clicks of the mouse, how is that not a national ID?

E-Verify does, and will, violate citizens’ right to live and work privately, or anonymously. It will create a centralized digital record of an individual’s E-Verify queries, worksites, and locations, and Sen. Schumer has already said he wants biometric national ID that “is used in all instances the Social Security card is used.” Moreover, it is a system that can and will be used to monitor and restrict access to almost anything from controlling Internet access to monitoring gun sales—if Americans accept that as “not national ID,” then the phrase has lost all meaning.

As Supreme Court Justice Stevens said, writing the opinion of the Court in 1995, “anonymity is a shield from the tyranny of the majority.” I say, “Mr. Stevens, reinforce  that shield.”

Milton Friedman, perhaps the most important free market economist and libertarian activist of the 20th century, is also the favorite of immigration restrictionists for comments he made about the supposed incompatibility of immigration and the welfare state. “There is no doubt that free and open immigration is the right policy in a libertarian state,” he wrote in a letter from Milton Friedman to Henryk Kowalczyk. “[B]ut in a welfare state, it is a different story.”

The gist of Friedman’s argument is that, because America has embraced the welfare state, the government must expand its power further still to limit the negative impact of welfarism. But if conservatives and libertarians accept this premise, they unintentionally endorse the actions of such nanny state regulators as NYC Mayor Michael Bloomberg. After all, as argued here, one could justify Bloomberg’s ban on large sodas, limits on trans fats, and other such restrictive measures in the name of reducing health care costs and decreasing the burden of Medicare and Medicaid on taxpayers. Similarly, President Obama’s Department of Health and Human Services justified its requirement that businesses pay for contraceptives by highlighting the burden unwanted pregnancies impose on the health care system. “It saves money—for families, for businesses, for government, for everyone,” President Obama argued.

It’s hard to imagine Michael Blomberg saying, à la Milton Friedman, that “There is no doubt that letting consumers choose their own diets is the right policy in a world without Medicare and Medicaid.” And, to be sure, the two scenarios are not perfect analogues. But the basic underlying rationale is the same.

J.S. Mill warned of this outgrowth of the welfare state in the 19th century when he wrote that, “With paternal care is connected paternal authority.” Welfare state obligations have, he said, “never existed, and never will exist, without, as a countervailing element, absolute power, or something approaching to it, in those who are bound to afford this support, over those entitled to receive.” As Mill feared, the welfare state threatens the classical liberal order not just because it wastes money and breeds dependency, but because it is ultimately used to justify ever greater intrusions into our lives.

The conclusion of the matter is this: if libertarians and conservatives actually want smaller government, we cannot use big government to justify even bigger government. We cannot fall into the trap of believing that actions taken to prop up previous untenable interventions will actually result in a smaller state. Rather, we should adopt the attitude of John Locke, which sees an expansive welfare state as “a shame to the government and a fault in our constitution that must be remedied,” but not as an excuse for even greater governmental power.