I was listening to John Cochrane, now at Hoover Institute, giving an EconTalk Podcast with Russ Roberts. One of the main problems with the over-regulatory administrative state that the United States is becoming, according to Cochrane, is that “the rules” are no longer clear and so regulatory agencies make the rules and the rules are discretionary and situational so people in business have to “be quiet” for fear of angering the regulators.  (BTW, I am paraphrasing, not quoting.) Russ Roberts, for the first time in many a podcast (and I have listened to a lot, he has excellent guests) pushed back.  “Hasn’t that always been true?  What evidence is there that there is more arbitrariness?”  Cochrane was not that convincing.  His argument sounds better than it tastes.

But that is not why I suddenly decided to write.  Reading about Trump’s threat to have his attorney general appoint a special prosecutor to “lock her up” I thought to myself: Who do we fear, really? The Republican and Democrat well-intentioned, if-revolving-door regulators of the U.S. government?  Or someone who cavalierly brushes aside a long-standing norm about the administration of criminal justice (a norm reinforced after Richard Nixon’s disgrace)?  Here is Benjamin Wittes on the issue:

One of these norms is that the Justice Department doesn’t use the criminal enforcement powers of the federal government to go after the administration’s political opponents. This is the idea of impartial justice. But don’t kid yourself. The Constitution does not require impartial justice. The president has enormous discretion—which, put more crudely, means that we expect him to discriminate. One possible basis for this discrimination is how much he likes or dislikes you. Most people have committed crimes if you look hard enough to find them. What prevents administrations from focusing on the crimes of their opponents, rather than the most serious crimes committed by whomever, is nothing more than the institutional expectations we have of the executive branch—and it has of itself. These expectations sound less in law than they do in decency and civic virtue. What Trump is promising here is precisely war on that decency and civic virtue.

Back to Cochrane.  Turns out a grumpy Republican economist a the Hoover Institute thinks just like a cheerful economist (generally… how can you not be cheerful living in northern California, compared to, oh, Burkina Faso?) at Santa Clara University.  The evidence is from his blog:

The leading candidates have already promised which way they’re going. For example, Ms. Clinton, quoted by Kim Strassel, promises to use Treasury regulation to punish companies that legally reduce taxes by moving abroad. And Mr. Trump outrages the law and constitution daily.

If you have to choose the least-bad, I think Cochrane is telling us who he will choose.  One proposes to outrage a regulation.  The other outrages the law and constitution daily.

Postscript: Can an amateur blogger compete? Tyler Cowen wrote about this issue back in March, unfavorably in regards to Trump.  When very libertarian economists find common ground with non-ideological economists, that is something.  WTF is a “non-ideological economist” you might ask.  Here’s my working definition: Because I don’t have a strong ideology, I don’t feel compelled to have or to express an opinion about everything.  Ideologues have to (or want to) fit everything into the perspective of the ideology.  They enjoy and see as important figuring out how their ideology applies to every issue that crosses their plate.  They are the foodies of intellectuals.  Everything has to be evaluated.  (Most ideologues, but certainly not Tyler Cowen, limit themselves in other ways… Libertarian economists rarely have any interest in what happens in foreign countries, leading to their occasional Aleppo moments, to use the phrase that is au courant…  Socialist economists never seem to quite know what to do with consumer behavior…)