February 14, 2024

The House of Representatives has voted to impeach Secretary of Homeland Security Alejandro Mayorkas on a 214 to 213 vote. Article I of the impeachment is regarding Mayorkas’ alleged “Willful and systemic refusal to comply with the law” and Article II is regarding Mayorkas’ alleged “Breach of public trust.” Read the impeachment articles here. Much ado has been made over this “precedent shattering” impeachment attempt. New precedent or not, is the reasoning behind the impeachment sound?

Constitutional Duty

We all remember from civics class that in the United States of America, the Constitution is the “Supreme Law of the Land.” We know that all civil Officers of the United States, including the Secretary of Homeland Security, must follow the Constitution and all subsequent constitutional laws. We know the Executive Branch is tasked with executing the laws passed by the Legislative Branch and is not permitted to create its own laws or act contrary to the letter of the law. We know that Separation of Powers and Checks and Balances are part of a design by the Founders to ensure government actors do not become corrupt and that one branch does not usurp too much power for themselves at the expense of others.

Why then should the House of Representatives not use its Constitutionally-granted authority to impeach a Secretary that is not only (allegedly) grossly derelict in their duty to enforce the law but is also (allegedly) acting essentially as a legislator creating their own law that is repugnant to and/or outside the scope of that authorized by Congress? Both a willful failure to enforce law and creating improper (law) are contrary to the supreme law of the land and the spirit of the Constitution and can have a negative effect on the country.

Partisanship & Subjective Criteria

Article II, Section 4 of the Constitution states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It is true that what constitutes “treason, bribery, or other high crimes and misdemeanors” is often subject to debate. In this case, the Senate, which is charged with conducting the impeachment trial, will almost certainly not vote to convict Mayorkas because a two-thirds majority is required to do so. This impeachment could justifiably be considered political in nature, regardless of the merit of the case. This, along with subjective interpretation, gives cover for opposition Senators to vote against conviction. Clearly this specific impeachment is overwhelmingly favored by Republicans and opposed by Democrats, but nothing about the nature of the Democrat Party or their history suggests they will not use similar reasoning to impeach officials in the future. On the contrary, they have already done so in varying contexts. In this regard, this impeachment is not “unprecedented,” as several recent impeachments have been of the same politically-motivated nature.

Determining Objective Criteria

What we may be seeing, like it or not, is the beginning of an era of increased use of impeachment by a House controlled by an opposition party to that of the President to express disapproval of policy or actions preferred by the Administration. Depending on how one looks at it, this could be a good or a bad thing. It is certainly not favorable to have a House wasting time and resources on impeachments for matters that are objectively political, petty, light and transient. On the other hand, the People often wish to see their Representatives take action against political situations that have become stagnated and are causing real harm due to inaction and incompetence. Even if there is little chance of success at conviction, the mere effort to express opposition to a policy/action and to show a force against it can have a long-term political impact via future election choices and as a deterrent against improper behavior. If this is going to be a more regular occurrence, what is needed is a criteria for judging a valid use of impeachment from an invalid one.

First and foremost, when it comes to charges related to a dereliction of duty, what we should want to avoid is impeachment action based only on a dissatisfaction of results given an attempt at proper execution of valid law. Also, we ought to avoid impeachment attempts based on mere disagreement over interpretation of a specific aspect of a law and fights over simple agency discretion/allocation of finite resources. It is a given that the two Parties (or ideological “sides”) are not going to agree on a lot of this type of stuff, so it would become unworkable to universalize the use of impeachment as a weapon in such ideological/policy battles. Also, while unfortunate, it is a current reality that Constitutional limitations and legal procedures are regularly being violated as a matter of course, that is to say some improper actions have been normalized. We ought to attempt to fix such errors where they occur, but legal reform and judicial remedy are more appropriate for that task than impeachment proceedings against this or that official acting upon status quo expectations.

What should be debated in such a valid impeachment inquiry is whether or not the individual is willfully attempting to act contrary to not only the spirit of, but also the letter of, the law. We know that in a Rule of Law society, the operative concept is the supremacy of the Law, not the opinion of the Man acting on the law. If an individual decides to take it upon themselves to disregard the law and act on their own accord, they are immorally putting themselves over the will of the group. This is contrary to the very point of our governmental system. A person that does this is therefore culpable for harm that comes from such acts, in addition to the act being improper in itself as well.

Wielding Impeachment as a Weapon

One of the more interesting points brought up in the impeachment articles themselves is the seeming endorsement of such action by the Supreme Court as indicated in their United States v. Texas opinion. Stated in relevant part;

“Additionally, in United States v. Texas, 599 U.S. 670 (2023), the United States Supreme Court heard a case involving Alejandro N. Mayorkas’s refusal to comply with certain Federal immigration laws that are at issue in this impeachment. The Supreme Court held that States have no standing to seek judicial relief to compel Alejandro N. Mayorkas to comply with certain legal requirements contained in the Immigration and Nationality Act. However, the Supreme Court held that “even though the federal courts lack Article III jurisdiction over this suit, other forums remain open for examining the Executive Branch’s enforcement policies. For example, Congress possesses an array of tools to analyze and influence those policies [and] those are political checks for the political process”. One such critical tool for Congress to influence the Executive Branch to comply with the immigration laws of the United States is impeachment. The dissenting Justice noted, “The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes. In order to reach this conclusion, the Court…holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’ power to employ the weapons of inter-branch warfare…”. As the dissenting Justice explained, “Congress may wield what the Solicitor General described as ‘political…tools’—which presumably means such things as…impeachment and removal”. Indeed, during oral argument, the Justice who authored the majority opinion stated to the Solicitor General, “I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps…”. Here, in light of the inability of injured parties to seek judicial relief to remedy the refusal of Alejandro N. Mayorkas to comply with Federal immigration laws, impeachment is Congress’s only viable option.”

Congressional action is the best way to address the problems with existing immigration law and the crisis at the southern border. These are undoubtedly Federal issues that require Congress to act. Border states such as Texas are bearing the brunt of the problem and if they cannot turn to the Courts for relief and are hindered from adequately addressing the problems themselves, then it once again falls on Congressional members to step up and find solutions. Impeaching the head of DHS certainly is not a viable solution in itself, but the Courts seeming endorsement of the general action at least bolsters Congressional authority on the matter.

Mayorkas Impeachment Articles

The rest of impeachment Article I did appear to indicate that the accusations against Mayorkas are of a nature that reflects an alleged willful intent to contradict and usurp the law through direct action rather than a mere failure to competently implement the law. One can read through the specific statutes Mayorkas is accused of violating in the impeachment linked to above, but in general Article I accuses Mayorkas of “…Repeatedly violated laws enacted by Congress regarding immigration and border security,” the alleged result being, “…millions of aliens have illegally entered the United States on an annual basis with many unlawfully remaining in the United States.” The impeachment article goes on to state, “His refusal to obey the law is not only an offense against the separation of powers in the Constitution of the United States, it also threatens our national security and has had a dire impact on communities across the country. Despite clear evidence that his willful and systemic refusal to comply with the law has significantly contributed to unprecedented levels of illegal entrants, the increased control of the Southwest border by drug cartels, and the imposition of enormous costs on States and localities affected by the influx of aliens, Alejandro N. Mayorkas has continued in his refusal to comply with the law, and thereby acted to the grave detriment of the interests of the United States.”

Additionally, the authors of the impeachment articles include (in Article II) allegations Mayorkas knowingly made false statements to Congress in several instances, including “knowingly obstructed lawful oversight of the Department of Homeland Security principally to obfuscate the results of his willful and systemic refusal to comply with the law.”

If the notion of “inter-branch warfare” is to be embraced, including impeachment, then this impeachment effort appears to be valid. It is up to the Senate to decide the matter and we know how that will go. If the new precedent will make impeachments more common, this threatens to weaken the stigma against being impeached; and this has likely already occured. But Mayorkas’ conduct warrants further scrutiny in this case so on its own the case has some merit. While no repercussions will likely come from this impeachment for Mayorkas, perhaps after the 2024 election a new course can be taken regarding immigration reform and border security with some lessons learned from the failures of Mayorkas and the policies that resulted in the impeachment. So far opposition to the impeachment appears to be political on the Democrat side with some Republicans also worried about the bad precedent it will set. It is too late for that. We ought to focus now on ensuring when such action is taken in the future, that it is based on clear violations of Constitutional duty and valid law, not on mere disapproval or accusations of incompetence. If all else fails, we can endure the annoyance of political show trials and take refuge in the fact that the bar for conviction in the Senate is high. The wisdom of the Founders may have protected us once again.