The latest episode of the Ezra Klein Show, “The Emergency Is Here,” is simultaneously alarmist and hopeful. It features a longer-than-usual prelude by the host, followed by an interview with Asha Rangappa, a former F.B.I. special agent and now an assistant dean at the Yale Jackson School of Global Affairs.
I don’t have time to do a lengthy set of excerpts and analysis but the key takeaways are:
- The president of the United States is disappearing people to a Salvadoran prison for terrorists
- The Trump administration holds the view that anyone they send to El Salvador is beyond the reach of American law — they have been disappeared not only from our country but from our system — and from any protection or process that system affords.
- If President Donald Trump decides that you are to rot in a foreign prison, then that is his right. And you? You have no rights.
- There’s nothing the courts can do to stop this, since Trump holds the enforcement power
- Congress has the power to stop this, by impeaching and removing Trump. But in an era of nationalized, polarized political parties, impeachment is a broken power.
I doubt many regular OTB commenters strongly disagree with this assessment of the situation. But my interest is in the hopeful part (boldface is Klein; standard font is Rangappa):
You can imagine a world where we sort of muddle along in these horrors for a year and change. But then Democrats have a significant midterm victory.
And I keep saying — only half as a joke — that what might save American democracy is that Donald Trump has the dumbest possible views on the global economy, and in absolutely wrecking 401(k)s and prices and the ability of small businesses to import, he is handing his opponents an incredible midterm opportunity.
So say, in this scenario, the Democrats take the House. The Senate is unlikely for them, but it’s not completely impossible in a wave. And they’re not going to have the power to impeach him. They would not have the numbers in the Senate to attain conviction.
But they would all of a sudden have a lot of power. They could take money from all kinds of areas of the government. They could hold all kinds of members of the government in contempt.
All of a sudden, there is not necessarily the power to end this but a huge amount of leverage.
That is, I think, the actual pathway that is open.
I’m glad that you mentioned the appropriations authority because one thing that remains very unclear in this is where the money is coming from to transport these prisoners. What was that money originally appropriated for? What are the terms of this agreement, by the way?
Under the law, there’s something called the Case-Zablocki Act, which requires the executive branch, the secretary of state, to notify Congress of executive agreements that it reaches with foreign nations. So this is something that technically they need to disclose. They’re supposed to publish it on the Department of State website.
But to your point about withholding funds, to go back again to Sept. 11, Congress actually prohibited the use of funds to transfer detainees from Guantánamo to the United States to be tried in criminal courts. So they were just stuck there.
So it seems very clear to me that if Congress wanted to, they could prohibit the use of funds to send people to El Salvador.
They could also take a lot of things that the Trump administration wants to keep away from them.
So again, imagining the admittedly unlikely scenario of unified Democratic control of the House and the Senate: Democrats could simply decide to carve out more exemptions on the filibuster. And they could take the tariff power away from Donald Trump. They could take the tariff power back for Congress, which is originally where it sits. And all of a sudden Donald Trump doesn’t have his favorite tool of international economics.
Then everything then becomes a negotiation. There are a huge number of powers Trump is using right now that are working off of old pieces of legislation that were not built for today.
Now, Congress does not like going back and revisiting old pieces of legislation ill built for today, because they have trouble legislating on anything. You don’t get a lot of political victories for going back and closing old loopholes and authorities. But they could.
And in a world that becomes a showdown between the branches, it’s not impeachment or nothing. It is leverage over functionally everything.
The president of the United States does not have a magic wand that puts tariffs on other countries. That has to be enforced and done through U.S. law. That is power given to them by Congress.
The things that DOGE has been doing, the efforts they’re making over spending, that is all power that Congress is functionally granting them. They could take it all back.
Yes, absolutely. And in a bigger sense, it’s reimagining the kind of person we imagine to be in the Oval Office.
After Watergate, there were all these reforms that were done because all of a sudden we had to reimagine: What do you do if you have a president who’s going to push all these boundaries?
So we get the Ethics in Government Act of 1978. We get the Independent Counsel statute. We get restrictions on how tax information can be used by the president. Because all of a sudden, we had all these examples.
Frankly, we’ve known this for a while — that these things should have been done. That pendulum should have swung already. But there’s a reckoning that is going to have to happen in terms of: You can’t grant this much authority to the executive branch.
This strikes me as wildly optimistic.
For the sake of argument, let’s assume that we hold free and fair elections in November 2026 and that the Democrats take majority control of the House and Senate. Why would anything change?
To be sure, the House could impeach Trump for a third time. But, unless Democrats get a 67-vote majority in the Senate—which isn’t going to happen—it’s an irrelevancy. There won’t be enough votes to remove him from office, so another impeachment will just embolden him.
Trump is already violating all manner of laws. He’s ignoring Congressional intent in shuttering agencies created by law and arrogating to himself the ability to decide which Congressionally-allocated funds to spend. What difference would more laws and a new budget make?
Trump is operating under the Unitary Executive Theory. So long as is funding for a Department of Justice, Department of Homeland Security, Department of Commerce, etc., Trump can pretty much order them to do whatever he wants, Congress be damned.
So what if Congress takes away the tariff power? If the President declares tariffs, the appropriate executive agencies will collect the tariffs.
Klein gets at the reality when he observes:
I remember a political scientist I really respect said to me during Trump’s first term: There is no design of a political system that works well for electing terrible people.
To design a political system under the theory that you elect terrible people is to make the system unmanageable. Because you are, by nature, tying their hands because they’re terrible.
But then if you elect leaders who have tyrannical impulses into a system that assumes a fundamental level of good faith on the part of the executive, then you’ve given an ill-motivated person a terrible amount of power.
And I would add that the landscape has changed. If you’re also looking at two big assumptions that maybe existed back in Nixon and before — which is, A, that the president is not above the law, and, B, that Congress would be willing to use its ultimate weapon if it has to — which is impeachment — if both of those are off the table, then we’re in a whole new landscape. And we have to accommodate that reality.
There is simply no imaginable system that works under these circumstances.
