A Shameful Impeachment

The GOP is readying baseless impeachment articles in order to keep the border crisis politicized.

Republicans rally around the impending impeachment of Secretary Alejandro Mayorkas. Photo: J. Scott Applewhite / AP

The GOP-led House is preparing an impeachment vote, but not for the president this time. Instead, they are targeting Secretary Alejandro Mayorkas of the Department of Homeland Security. 

As my recent pieces have discussed, Republicans want the border to be a big campaign issue. It’s why Trump has been stirring up anti-immigrant sentiment, even saying “illegals” are “poisoning the blood” of America—a callback to Hitler’s infamous words.

It’s why the House GOP is refusing to even consider a proposed bipartisan Senate deal, calling it “dead on arrival” before even seeing the text of it. Remember, this is the very border policy fix that Speaker Johnson had once insisted be a part of any funding for Ukraine.

And now it’s also why Republicans are launching the Mayorkas impeachment. A House committee votes on Tuesday and is expected to recommend his impeachment along a party line vote. 

But is there any basis at all to this move? What legal grounds do they claim call for impeachment, and why are these, charitably put, complete B.S.?

Today, I’ll walk through the impeachment allegations and DHS’s responses to them. We need to understand how far the GOP is willing to go to score political points and why it’s so important for Democrats and the American public to push back against it.

The GOP is asking for the impossible

The first article in the 20-page impeachment resolution accuses Mayorkas of “willful and systemic refusal to comply with the law” by “repeatedly violating laws enacted by Congress regarding immigration and border security.”

The resolution alleges Mayorkas and the Biden Administration have disregarded what’s known as the “detention mandate.” That mandate requires that all applicants for admission to the U.S. who are “not clearly and beyond a doubt entitled to be admitted” be “detained for a removal proceeding.” In other words, for all the millions of asylum seekers who were met and initially processed at the border, the GOP claims the law requires that nearly all of them be detained rather than released into the U.S. pending a hearing to decide whether they are eligible to stay.

This is what’s known as an “unfunded mandate.” It’s a law telling an agency what it has to do, but not providing the resources necessary to do it. And the “detention mandate” is one of the worst unfunded mandates out there. As Frank Bowman wrote for Just Security,

For the federal government to detain all ... aliens with a pending immigration case would require ... a system twelve times as large as the entire federal prison system and 50% larger than all federal and state prisons combined.

In fact, as the Policy Director of the Immigration Council, Aaron Reichlin-Melnick, recently noted, even extremist Justice Samuel Alito admitted in Biden v. Texas that DHS “does not have the capacity to detain all inadmissible aliens encountered at the border” and that “no one suggests that DHS must do the impossible.”

Justice Alito apparently gave too much credit to the House GOP, who have suggested this very thing.

There are exceptions to the detention requirement that are worth discussing. The law permits the DHS to parole asylum applicants on a “case-by-case” basis into the United States. The GOP has seized upon this language to claim that Mayorkas is not going applicant by applicant, which of course would also be impossible given lack of resources and the millions of asylum seekers awaiting their hearings. Indeed, it would make little sense to go “case by case” in order to release each asylum individually, when you might as well just process and adjudicate their application.

As Bowman observed, DHS’s long standing practice has instead been to systematize its parole authority through executive orders or determinations by the immigration authorities. Wisely, department officials have created standards and programs around how to adjudicate these applications. For example, certain humanitarian considerations and countries of origin, such as Ukraine following the Russian invasion, have received preferred parole status, while others have not. 

A third option for Mayorkas would be to return asylum seekers to Mexico to await processing. It’s important to note that this is an option, not a requirement. The Biden Administration decided back in 2021 to terminate the Trump administration’s “Remain in Mexico” policy because it had become unwieldy and inhumane, and the Supreme Court expressly upheld his authority to do so in Biden v. Texas.

Instead, the U.S. created a “rebuttable presumption” against granting asylum to any non-Mexican migrants who failed to seek asylum first in Mexico. In other words, if you failed to apply for asylum in Mexico, you were presumptively removable for having failed to do so. This was a controversial policy decision that immigration advocates and civil rights groups labeled as no better than the “Remain in Mexico.” But it was still a policy decision by the government, and not something for which the Secretary can be impeached. 

Indeed, it cuts against the idea that neither Biden nor Mayorkas is doing anything about the migrant “crisis.” Biden could remove many more migrants if the asylum system were better funded with more judges and staff—something that the House GOP refuses to do.

In sum, by claiming he is willfully failing to follow the law, the GOP is trying to impeach Mayorkas under an unfunded mandate. He has been following the same procedure every Secretary has followed for decades, or is otherwise following the policy decisions of the Biden White House. They are bringing the impeachment articles at the very time they are refusing to fund the mandate they claim he is violating, all to score political points and draw further attention to the border.

It wasn’t a “lie” for Mayorkas to testify that the border is secure

The second article of impeachment is even more absurd than the first. 

The GOP is alleging Mayorkas lied to and obstructed Congress by claiming the border is “secure.” Specifically, Mayorkas had the temerity to claim that the border is “no less secure than it was previously,” that the border is “closed,” and that DHS has “operational control” of the border.

The unseriousness of this article can be understood best through a quick look at one of these claims. The GOP has latched onto the term “operational control” contained within something called the Secure Fence Act of 2006. That Act broadly (and rather ridiculously) defines operational control as preventing all unlawful entries into the United States—another type of unfunded mandate. Everyone knows that is yet another impossible goal—as impossible as Speaker Johnson’s demand that, as far as illegal crossings at the border go, the “number must be ZERO.”

As the DHS stated in its memorandum response to the House Committee markup of the impeachment resolution, “By that definition, no administration has ever had operational control.” DHS pointed out that after the Secure Fence Act passed, Border Patrol under George W. Bush “felt it necessary to clarify its definition of operational control in its 2007 national strategy as ‘the ability to detect, respond to, and interdict border penetrations in areas deemed as high priority for threat potential or other national security objectives’ so that it did not run afoul of the Act.”

If the standard for “operational control” has always been how the Secure Fence Act illogically and impossibly defined it—i.e., all unlawful entries into the U.S.—then Congress should have been impeaching every DHS Secretary since its passage.

The border is as secure as it can be given the resources that Congress has provided and the policies that are in place to deal with the influx of migrants. And it is certainly not an impeachable offense to suggest that it is at least as secure as it has ever been.

No Constitutional basis for impeachment

The move to impeach Mayorkas is so brazen and so lacking in evidentiary and legal support that the Fox Network’s own very conservative legal analyst, Professor Jonathan Turley of George Washington University, even came out against it. Mediaite reported on the exchange:

“We know over the last, unfortunately, a number of years, impeachment is for treason or bribery or high crimes and misdemeanors,” Steve Doocy started the interview before asking, “Does Mr. Mayorkas, has he done any of those things yet?”

”I don’t think they have established any of those bases for impeachment,” Turley replied. “The fact is, impeachment is not for being a bad cabinet member or even a bad person. It is a very narrow standard.”

Turley explained that the original framers of the Constitution rejected terms like “maladministration” because that’s not what they had in mind. He even admonished the current GOP-led Congress for attempting the impeachment for displeasure over their performance.

“Past Congresses have recognized that there’s a danger to this once you cross the Rubicon and start to remove cabinet members because they’re not doing a good job,” Turley noted, before adding, “I just don’t believe that they have a cognizable basis here for impeachment.”

The GOP nevertheless hopes that by putting a face to the migrant issue, they can demonize Mayorkas and keep the border top of mind for voters in November. So Democrats and the voting public must reject this cynical abuse of power. Because there is no real way to stop the GOP from proceeding with the impeachment (which is dead on arrival in the Senate, to use Johnson’s phrase), Democrats will be busy making the case that this is a selective and politicized attack, and that if there is any fault to be assigned, Republicans bear the brunt of it for failing to act to fix the border.

They didn’t do so when they controlled Congress and the White House from 2017 through 2018. And they aren’t doing so even now, when presented with a bipartisan solution they once demanded, one that would fund the very mandate they say Mayorkas has violated.