House Republicans on the Homeland Security Committee got their wish and have passed two articles of impeachment against Homeland Security Secretary Alejandro Mayorkas.
The two articles of impeachment accuse Mayorkas of “willful and systemic refusal to comply with the law” and a “breach of public trust.” Mayorkas had followed the orders of his boss, Joe Biden, and had allowed millions of illegals into the country.
But claiming the surge of illegals is the fault of a cabinet secretary doesn’t pass constitutional muster. The “high crimes and misdemeanors” bar isn’t high and deliberately vague. But many constitutional scholars say that the Republicans have failed to meet that bar in impeaching Mayorkas.
The bottom line is that you can’t impeach a cabinet secretary for being an incompetent fool. Nor can you impeach Mayorkas for obeying the law as it now stands. One of the specifics in the article about Mayorkas refusing “to comply with the law” is his use of “catch and release” at the border.
The “catch and release” practice is not an invention of Mayorkas or Biden. The phrase refers to a “collection of policies, court precedents, executive actions and federal statutes spanning more than 20 years, cobbled together throughout Democratic and Republican administrations.
The overwhelming majority of constitutional scholars — right, left, Democrats, and Republicans — view the Mayorkas impeachment unfavorably.
“I think that what the House Republicans are asserting is that Secretary Mayorkas is guilty of maladministration,” Tulane law professor Ross Garber said. “At least as framed right now, the charges don’t rise to the level of a high crime or misdemeanor.” Garber has represented “Republican officeholders as both the prosecution and defense in impeachment cases, ” according to CNN.
Another Mayorkas impeachment opponent is Georgetown University law professor Jonathan Turley, who gave the opening statement defending Donald Trump in his second impeachment trial.
“There is no current evidence he is corrupt or committed an impeachable offense,” wrote Turley.
Republicans may not even be able to pass articles of impeachment. Their slim, two-seat majority is hanging by a thread, and not all GOP House members have declared how they’ll vote.
Mayorkas says the problem is with “our broken and outdated immigration system” and is not new.
Addressing the claim that Mayorkas has failed to maintain operational control over the border, DHS said that based on the way the law defines operational control, “no administration has ever had operational control.”
Democrats on the Homeland Security Committee have repeatedly bashed their Republican colleagues for their efforts to impeach Mayorkas. Ahead of the markup, Democrats released a report calling the GOP effort “a sham.”
I can’t speak to the charge that the effort is a “sham.” But what about Senate Democrats already claiming they’re not going to even hold a trial? The Senate is obligated to get its members on record supporting or opposing the impeachment of Mayorkas.
But the cowardly Majority Leader Chuck Schumer wants to prevent a vote so that several vulnerable Democrats won’t have to go on record as being in favor of Mayorkas keeping his post. And given the Democrats’ majority in the Senate, they will probably get away with it.
The Constitution does not explicitly direct the Senate to try all House impeachments, but Senate rules direct the Senate to “proceed to the consideration” of any articles of impeachment sent over from the House.
Still, the Senate could vote by simple majority to delay a trial or even reinterpret the rules, according to the Niskanen Center and Lawfare.
Schumer could also shuffle the impeachment charges off to another committee and sit on it until after the election when Mayorkas would be committed. That may be the optimal solution for the Democrats who know the border is Biden’s Achilles heel and will do anything to avoid inflaming the political situation any further.