DHS Secretary Alejandro Mayorkas at a House Homeland Security Committee hearing.Annabelle Gordon/CNP/ZUMA
On Wednesday, House Republicans renewed their plan to impeach Department of Homeland Security Secretary Alejandro Mayorkas. It is part of a long attempt to pin the failures—both real and imagined—of the immigration system in the United States on supposed Democratic incompetence by warring against Mayorkas. And it would be an extraordinary step. No cabinet secretary has been impeached in 150 years.
In a formal impeachment hearing against the first Latino and immigrant to lead DHS, Homeland Security Committee Chairman Mark Green (R-Tenn.) called Mayorkas the “architect of the devastation” at the southern border, in reference to record numbers of people come to the United States. Green said root causes of migration like push factors in countries of origin, climate change, and a broken immigration system were just excuses. He instead blamed Mayorkas for the “unprecedented crisis.”
Almost since the moment Mayorkas, a career public servant with extensive experience as a federal prosecutor and head of the US Citizenship and Immigration Services (USCIS), began the job as head of DHS, Republicans have made him a target. They say that Mayorkas has willfully violated his oath of office by refusing to do his job of securing the border. Republicans claim Mayorkas has abused his office’s authority when using a discretionary parole program to allow certain groups to lawfully enter the country and has lied to Congress about having “operational control” of the border—an impossible, congressionally defined standard that requires “the prevention of all unlawful entries into the United States.”
As with previous congressional hearings and public attacks against the DHS secretary, the first official impeachment inquiry into Mayorkas once again exposed how legally weak Republicans’ case is. “They are angry that this administration won’t take babies from their moms or put kids in cages like the previous administration,” Rep. Bennie Thompson (D-Miss.) said, adding the “impeachment sham” wasn’t about facts or the law, but about politics. “You cannot impeach a cabinet secretary because you don’t like the president’s policies,” he continued. To emphasize that point, Thompson recalled how Rep. Green once told a room full of donors to “get the popcorn—Alejandro Mayorkas comes before our committee, and it’s going to be fun.”
At the hearing, House Republicans scrambled to make a case to impeach Mayorkas, calling on the attorney generals of Missouri, Montana, and Oklahoma—states interestingly not on the southern border—to testify about drug cartels and the deadly impact of fentanyl smuggling. (Evidence has established that fentanyl comes primarily through ports of entry via US citizens and lawful permanent residents.) Green also evoked Mayorkas’ vehement criticism of Customs and Border Enforcement (CBP) for the inhumane treatment of Haitian migrants at the border in 2021. The comments that made some border patrol offices mad at the time, but would hardly amount to gross misconduct or an impeachable offense.
It was then incumbent on Frank Bowman, a University of Missouri law professor and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump, to give House Republicans a brief lesson on what constitutes or not constitutional grounds for impeachment and how that extraordinary power should be deployed. “It is not supposed to be a routine tool to resolve ordinary public policy debates, even very passionate ones,” Bowman said. “It is instead a measure of last resort reserved, as one framer put it, for great and dangerous offenses.” Because impeachment wasn’t intended to be the equivalent of a vote of no confidence in parliamentary systems, he explained, an impeachable conduct should meet “a very high treshold of seriousness” and be of a “type that corrupts or subverts the political and governmental process.” There is no evidence that Mayorkas has committed treason, bribery, or high crimes and misdemeanors.
Several legal scholars agree, including some highly critical of the secretary. “Being bad at your job is not an impeachable offense,” Jonathan Turley, a George Washington University legal scholar who has served as a GOP witness, said in an op-ed in the Daily Beast. “Even really bad. Even Mayorkas’ level of bad. If that were the case, he would be only the latest in a long line of cabinet officers frog-marched into Congress for constitutional termination.”
In a letter addressed to Green and House Speaker Mike Johnson, a group of constitutional law experts from Harvard, Georgetown, Columbia, Brown, and other universities wrote: “We hold a wide range of views on the wisdom and success of Secretary Mayorkas’s approach to immigration policy. But we are in agreement that impeaching him based on the charges set forth by House Republicans would be a stark departure from the Constitution.”
Efforts to oust Mayorkas come as Republican lawmakers continue to push for a dead-end bipartisan hardline border policy deal the Biden administration is reportedly considering in exchange for aid to Ukraine, Israel, and Taiwan. One of the sticky issues in the negotiations is the use of parole, which Republicans want to severely limit even though it has helped the Biden administration manage the border. “The truth is that Republicans have no serious policy proposals beyond the cruelties stolen from Donald Trump and Stephen Miller’s handbook,” Kerri Talbot, executive director of the Immigration Hub, said in a statement. “Rather than working with Democrats to negotiate orderly and humane solutions that resource the border and strengthen local communities, which the majority of voters support, Republicans are content to ignore the issue so that they can feature the resulting chaos in their next campaign ad.”
