Having exhausted oneself in “I told you so” boasts of anticipating the Trump counter-revolution, one feels the need to observe the change-of-mood that has accompanied the end of the Obama revolution.  Now that our eight-year dalliance in central planning, socialism, authoritarianism, globalism, and un-payable national debt is coming to a nasty, sore-loser conclusion, it is time to reflect.  Time to give credit where it is due, to acknowledge that President Obama, for all his dark intentions, has given America the greatest gift that could have been bestowed at this scary stage of our devolution: a master class in where Obamaism leads.  If we survive the Obama years, if we can even make it through the President’s astonishing exit-tour agenda of completing the obliteration of the State of Israel and of the constitutional principle of “separation of powers,” the country might still be salvageable, even if not especially healthy.

After an adult lifetime of noticing how well the country does when mostly left alone by its government, one is not shocked by the stock market rally or other indicators of a revival in domestic confidence and international respect.  Corporate America loved Obama once it thought it had bought him, but it turns out that in the end, the private sector would rather compete in a free market than perpetually pay the going price for favored treatment from the government.  In dealing with the president, Wall Street eventually realized that, as the late Mayor Daley of Chicago once said of an adversary, “the trouble with this guy is that he won’t stay bought.”

The animal spirits are re-emerging, and already it is invigorating to feel it might once again be great to be an American, to expect to be rewarded for industry and talent rather than for one’s race, creed, gender, sexual orientation, or political leaning.  After eight depressing years of darkness, suddenly there is light, suddenly it is morning in America again and “hope and change” can mean something other than a step back into the Middle Ages.  Suddenly one feels less fear about exposing one’s progeny to long-term reeducation by the country’s education system.

Federal regulations (“regs”) have been around for quite a while.  Regs are issued by federal agencies rather than by Congress, but they look and operate just like laws adopted by Congress:  the government can fine you or seize your property or even jail you if you violate certain regs or certain laws.  Both laws and regs are rules:  each compels or prohibits conduct and can carry punishments for violations.  Laws regulate, and regs regulate.  The most-significant difference is that laws stand on their own, but every reg relates to a particular law and is supposed to explain or interpret that law or add processes for demonstrating compliance; you cannot have a reg without a law that is its source.  Executive Orders, governance by “a pen and a phone,” are just an alternative format for regs – they are presented by the White House itself, rather than by federal agencies, but they function just as regs do.

When conservatives argue for deregulation, there is ambiguity:  they might seek a reduction in the severity of a particular rule (“Don’t set such elevated MPG requirements for vehicles”), or they might want a reduction in its complexity (“Don’t require 1,000 pages of forms to support the MPG ratings you claim”).   Whether a rule is articulated as an Act of Congress (a law) or as an addition to the Code of Federal Regulations (a reg), is very important to political analysts and constitutional lawyers, though the distinction is not as important to economists.  When Mr. Trump proposes “deregulation” of the financial sector, does that mean he would lighten the substantive impact of the Dodd Frank Act (DFA) and the DFA regs, or reduce their volume and complexity, or both?  Is he just another politician who wants to alter the rules so that they favor the consequences he prefers?  Or is he interested in transforming our government by shrinking it, by moving it away from the micromanaging specificity of contemporary laws and regs and toward simpler laws and regs that articulate general principles but leave it to the judiciary (not the White House or Congress) to apply those principles to individual cases?

Here is the political case against regs:  they are constitutionally-suspect because they alter the laws they purport only to explain or interpret, and thus they are, in effect, legislation by the wrong branch of the government – especially where the affected law is so vague that it is little more than an outline, virtually a PowerPoint presentation of topics (viz, the ACA).  Here is the social and economic case against regs (and unwieldy laws, for that matter):  (i) they undermine the “Rule of Law” because they are so complex that normal people and small businesses have no idea of whether they are in violation; and (ii) they  burden the economy by driving up costs, by discouraging innovation and entrepreneurial behavior, and by diverting resources away from their most-productive uses.

Just how detailed and complex are regs?  Consider:  according to Davis Polk & Wardwell LLP, the DFA, as of July 21, 2015, consisted of more than 800 pages, but the 15 (!) federal agencies charged with writing regs for Dodd-Frank had already published over 22,000 pages of regulatory content pertaining to Wall Street reform, and they were far from done – the SEC published massive changes in July of 2016.  See https://corpgov.law.harvard.edu/contributor/gabriel-rosenberg/   .  Getting the idea?

Conservative politicians and economists believe the purpose of government-by-micromanagement (regs or enormous laws), its intended outcome, is central-planning, which is the identifying marker of extreme-leftist governments.  In the conservative view (best articulated by Hayek), the “Rule of Law”  exists only when you have laws that are clear, concise, understandable by all, and enforced with dispatch and without discrimination based on whose ox might be gored.  Per Hayek, if you do not have a Rule of Law, you have corruption and an underperforming economy.  Conservatives submit that America, because of its almost unintelligible (and largely unconstitutional) body of regs, Executive Orders, and laws, no longer has a Rule of Law, that we have been overtaken by a revolution that began with Herbert Hoover but was expanded exponentially by Barack Obama and has transformed America into a centrally-planned state, a corrupt and economically-stagnant state.

Is there an antidote, a technique for a counterrevolution?  How about replacing our mountains of micromanagement with simplified laws that avoid the conceit of trying to anticipate every possible application of them and instead say, for example, “do not offer a product that is not reasonably safe,” “do not generate industrial waste that is unreasonably hazardous,” or “do not operate a commercial bank without a reasonable amount of capital and a reasonable limit on debt” – ? (Maybe not quite that simply, but you get the idea.)  How about specifying that the determination of whether a particular action or condition is unreasonable must involve a consideration of the social and economic impact of its proscription?  How about letting the courts determine what is “reasonable” in any particular case, based upon judicial precedent, experience, and common sense.  For example, how about a concise program for reforming the Dodd Frank Act, one that would require few regs (or none) and a lot fewer than 22,000 pages, like this excellent proposal written by Prof. John Cochrane of Hoover:    http://johnhcochrane.blogspot.com/2016/11/a-better-choice.html

How could this be accomplished?  In two steps:  (i) cancel all extant regs and cram their text into re-stated versions of the respective Acts of Congress to which they relate; and then (ii) clean up these restated laws by abandoning the micromanagement model (what lawyers call the ‘civil code’ model) and going back to the fundamental-rules model (the Common Law model).  Is that feasible, given that  Congress does not have sufficient staff to accomplish the task?  Yes, if we downsize the federal agencies  by transferring the key members of the agency staffs to the payrolls of individual senators or representatives, or congressional committees, or Congress as a whole.

Is it already too late to restore a Rule of Law and recreate a dynamic economy?  Could we find alternative employment for the legions, the armies, of lawyers and federal employees who would be displaced by reform?

The public appears to believe that the case against Donald Trump is a matter of temperament and judgment, and that the case against Hillary Clinton is a matter of character (that she is corrupt and a liar).  The media are willing to consider policy differences, but it is hard to find a commentator willing to make the obvious point that Trump has assembled a hodgepodge collection of both conservative and liberal policies, while Clinton is a consistent, extreme leftist.  For a Republican journalist or commentator, the choice between the candidates should be obvious.

So, why do the Wall Street Journal, The Weekly Standard, National Review, prominent talk-radio hosts, and other keepers of the William F. Buckley/Milton Friedman flame insist that they will not support or vote for Trump,  even if the cost of that decision is a Clinton victory?  Specifically, why do conservative elites choose to ignore the fact that the Trump platform, for all its hodgepodgeness, is way more conservative than Clinton’s?  (Not that that is such big deal.  Who isn’t more conservative than Clinton?)  Bear in mind, we are not talking about Clinton vs. Romney, we are talking about Clinton vs. a Republican candidate who can check more conservative boxes on his scorecard than Bush the Elder, Bush the Younger, McCain, or Romney.  Doubt that?  Consider RomneyCare, consider “W” on deficit spending or “compassionate conservatism,” consider McCain on just about anything.

Hard to escape the conclusion that the elites of the GOP are offended by Trump because they dislike his style, that they consider him vulgar, temperamental, loud, and altogether someone they would not want to admit to their club.  This is not nineteenth century bigotry, this is contemporary bigotry.

Why else would any a Republican ignore the fact that a 50/50 Republican is better than a 0/100 Republican, and that personality flaws are less damaging than policy flaws or character flaws?  If Trump has character issues, how could they possibly rival Clinton’s? Trump may be wrong (or at least under-informed) about international trade, and his platform for immigration reform may be considered extreme (though it is now scarcely distinguishable from that of Marco Rubio).  But all in all, Trump, as a neophyte conservative, appears to be a quick study.  Consider his eventual endorsement of an ObamaCare replacement model that resembles Paul Ryan’s excellent plan, his policy-advances on trade and immigration, his list of acceptable Supreme Court nominees, etc.  Trump is still no Milton Friedman or Ronald Reagan, but really, are you aware of Clinton’s policy preferences, of her vow to continue the Obama transformation?  Do you understand her views on fiscal and monetary policy?

Are you prepared for the consequences of your snobbery, of your having turned up your sensitive noses at the crudeness and vulgarity of Trump?

It is down to this:  the Supreme Court issue is way more important than any differences of policy, character, or temperament between the candidates in the presidential election.  Nothing else matters, because of this:

• When both the president and a majority of the Court are leftist, the president can act as a dictator, because Congress cannot stop the president and a leftist Court will not stop the president.
• If Ms. Clinton wins the election, the odds are that it will be at least three decades before conservatives regain a majority on the Supreme Court.

Congress cannot stop the president. Until the Obama presidency, American presidents issued federal regulations and executive orders when they wanted to “fill in the blanks” in an Act of Congress, to provide clarification or greater specificity.  But under Mr. Obama, regs and orders are mainly for changing existing laws or creating new ones; they are for doing what Congress had been asked by the president to do but did not.  They are the president’s excuse for ignoring – for exploiting – congressional gridlock, using his pen and his phone.  This is far worse than judicial activism, this is defiance of Congress and the judiciary, this is open disdain for the constitutional model of separation-of-powers.

The judiciary will not stop the president.  A lawsuit can contest the legality of a particular regulation or order, arguing that it was unconstitutional because it was, in effect, a form of legislation, a way of getting around the executive branch.  In the highest-profile recent case involving the constitutionality of an executive order, United States v. Texas, a prominent immigration-case, the lower courts ruled that the president’s executive order was unconstitutional, and, as the Supreme Court was deadlocked at 4 – 4, the lower court ruling remained in place.  However, there was agreement among the commentators that the Supremes were split along ideological lines –  the four lefties voting to reverse, the four conservatives (including Kennedy) voting to uphold. This outcome confirmed the general public impression that a leftist-dominated Court could be counted-on to uphold virtually any executive order issued by a president.

The consequence:  when the judiciary is unwilling to invalidate regulations and orders, it affords the president clear-sailing, freedom to ignore Congress.  We now know what that means when we have a modern Democrat as president: so long as conservatives do not have a majority in the Supreme Court, we live in an autocracy, a de facto dictatorship.

How could this be changed?  With Scalia gone, we have a potentially-deadlocked Court:  4 of the remaining justices are leftist, 3 are conservative, and Kennedy is a swing vote who sometimes give the leftists a majority. But if Clinton were elected and another leftist were appointed as the successor to Scalia, that would give the left a clear majority of at least 5 to 4.  Here is what it would take for conservatives to regain a majority on the Court:

• A Republican president. Let’s call that a 50/50chance, a 50% probability in any election.
• A  Republican majority in the Senate, at the same time as we have a Republican president.  (The Senate must approve all nominations to the Supreme Court.) Recent history:  in the 64 years beginning with the presidency of Dwight Eisenhower, a single party has held both the presidency and a majority in the Senate only 27.5 years – 43%  of those years.  (Nixon never had a Republican Senate in his 6 years, Ford did not have one in his 2, and Bush The Elder was 0-for-4.)   Let’s generously round the 43% up to 50%.  So, the probability of having both a Republican president and a Republican Senate in any year is only 25%, under the basic formula:  when two events are independent, the probability of both occurring is the product of the probabilities of the individual events. 50% of 50% is 25%.
• The departure of a lefty justice at a time when we have both a Republican president and a Republican Senate. The probabilities?  Let’s start with the fact that since 1930 (the nomination of Chief Justice Charles Evans Hughes), there have been only 39 justices appointed to the Supreme Court, of whom 8 still serve, meaning the turnover is only 31 justices in 86 years.  So, we appoint, on average, just one new justice every 2.77 years, meaning the probability of even one court-opening in any year is only 36%.  As there is only a 50/50 chance that the departing justice would be a lefty, the likelihood of an opportunity to replace a lefty with a conservative is a mere 18% (50% of 36%), or once every 5 ½ years.
• Now the punch line: All of that would have to happen at least twice in order to get the conservatives up to a clear majority.  What are the chances of the requisite alignment of the stars and planets occurring not just once, but twice?  The chance of its happening in any year is, 18% times 18%, or just a bit more than 3%.  Three percent per year means once every 33 years! Willing to live under a dictatorship until 2049? Does that work for you?  For your kids?  Your grandchildren?

Temporary relief:  We might not have an autocratic government continuously for the entire 33 years.  Even if Clinton won, we might get temporary relief at a later time if a Republican were elected president.  But that, by itself (absent the other requisite conditions), would not be enough to appoint two conservative nominees to the Supreme Court, it would merely make life a little better for a few years.  Once that president’s term ended, the nation would revert to being at the mercy of a presidential dictatorship.

So, are you anti-Trump conservatives and Republicans  still feeling OK with sitting out this election because of your distaste for Mr. Trump, still dreaming that you could turn this all around with better candidates in 4 or 8 years?  Still confident that a Republican president and Congress in 2020 or later could set things straight again?  Sorry, will not happen.  Even if the Republicans kept control of the Senate this year, despite a Clinton victory, we already know that a Republican-controlled Senate would not have the fortitude to spend 4 whole years continuously refusing to approve any Clinton nominees  to fill the Scalia seat.  So, we would be back to the 33-year scenario.  Are you willing to bet everything on Mitch McConnell overseeing a Republican retention of the Senate and leading a “no” vote on every single Clinton nominee for up to 8 years?

We are eight weeks away from an election that could grant Hillary Clinton a mandate to achieve her life’s ambition of transforming our liberal, democratic republic into an authoritarian, centrally-planned state.  And Dorothy Rabinowitz (see Wall Street Journal, 9/29/16) is still sniffling about the stylistic and temperamental shortcomings of Mr. Trump.  Ms. Rabinowitz might have been more persuasive had she addressed the differences between the candidates on substantive matters, but the more-important point is that this election is about just one issue: control of the Supreme Court.

•  It is certain that Ms. Clinton would fill the Scalia seat, as well as any other seats that became vacant during her reign (e.g., Ginsburg’s), with people who share her view that the U. S. Constitution is an obsolete nuisance that can and should be brushed aside to make way for presidential Executive Orders and federal regulations.  It is also clear that a Clinton-style Supreme Court would give the White House the functional equivalent of the power of the Central Committee of the Communist Party of China.
• We cannot be certain that Mr. Trump is more respectful of the truth than is Ms. Clinton, but we do have his pledge to fill Supreme Court vacancies with responsible lawyers and jurists who do not share Ms. Clinton’s vision of turning our legislative and judicial branches into window-dressing.  He has given us a list of possible nominees, and the list is impressive and convincing.

Ms. Rabinowitz indicates that Ms. Clinton, though burdened by certain “proclivities” (like, lying?), is “experienced, forward-looking, indomitably determined, and eminently sane.”   She neglects to mention that Ms. Clinton is a big-government/static-economy socialist, but, picky picky.

The central point is that Trump, despite his flaws, would give us an independent Supreme Court and Clinton would not.  The only other core-issue, the elephant in the room, is that the fastidious right is nearly as concerned as the left over placing Donald Trump’s finger on the Nuclear Button.  This fear, more than quibbles about policy or doubts about his character and personality, lies at the core of Trump-aversion syndrome.  Rabinowitz et al seem to fear that Trump might blow up the world if some nation insulted his wife or questioned his net worth.  Understood, but would you reject someone who might push the button at an inappropriate time, who might decline to go through the charade of assembling 30- member Coalitions of The Willing, and instead elect someone who has shown that she would never push the button, no matter how grave the danger we faced, someone with a lifetime resume’ of finding reasons NOT to take appropriate military action, whether in Benghazi or generally in the Middle East?  Do you, like Ms. Clinton, fear battle more than you fear loss of your independence?

We get it, that historians might not forgive you purist republicans for voting for Trump.  But remember, you scarcely lifted a finger to support the losers he dispatched so readily in the primaries.  So, get over it: hold your nose, compromise your intellectual purity, and save your country.  Forget policy and personality. This election is about the survival of our constitutional system of checks and balances.  At this point, only the judiciary, only a Supreme Court not dominated by the left, can prevent keep this “progressive” coup from becoming permanent.  Remember, it is almost impossible to revert from the statist model back to the free-markets/free-people model. Think Venezuela.  Think western Europe.  Sitting out this election while pledging to nominate a better candidate in 2020 would be unrealistic and reckless.  We might not even be holding elections by then.