GOP’s Mayorkas impeachment articles come under microscope

House Republicans’ novel approach for impeaching Homeland Security Secretary Alejandro Mayorkas is earning criticism from the left and even the right, who argue the GOP is falling short of the constitutional standards to remove a Cabinet official from their post.

Articles set to be marked up by the House Homeland Security Committee on Tuesday accuse Mayorkas of failing to follow immigration laws — pointing to detention standards that have never been met under any administration, including during the Trump era.

They also accuse him of “breach of public trust” — something they say amounts to a “violation of his oath to well and faithfully discharge the duties of his office.”

While Republicans say their case rises to the level of high crimes and misdemeanors, Democrats are blistering in their criticism.

Others see small and large issues with the case, from its failure to identify a crime to in some cases including incorrect information, such as accusing Mayorkas of terminating agreements with Latin Americans governments that were actually suspended by Secretary of State Antony Blinken.

“There is no treason. There is no bribery. There is no high crime and misdemeanor. You have two completely made-up accusations in a litany of articles of impeachment that simply recite policy disputes because the Republicans do not like how President Biden and Secretary Mayorkas have tried to address the issues at the border,” Rep. Dan Goldman (D-N.Y.), a member of the committee, said at a Monday press conference.

Some Republicans also have been pointed in criticizing the House GOP’s approach to the second-ever impeachment of a Cabinet secretary.

In a Sunday op-ed, former Homeland Security Secretary Michael Chertoff, who served under former President George W. Bush, cautioned: “Don’t Impeach Alejandro Mayorkas.”

“They have failed to put forth evidence that meets the bar,” Chertoff wrote.

“This is why Republicans aren’t seeking to hold Mr. Mayorkas to the Constitution’s ‘high crimes and misdemeanors’ standard for impeachment. They make the unsupported argument that he is derelict in his duty.”

Conservative commentator and legal expert Jonathan Turley said Monday: “I just don’t believe that they have a cognizable basis here for impeachment.”

Republicans on the Homeland Security panel in response have sent out a compilation of statements from Democrats expressing concern over the border.

The bulk of the articles are dedicated to breaking down the immigration laws the GOP says Mayorkas has defied.

That includes a focus on language in the Immigration and Nationality Act that says migrants “shall” be detained.

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But the Department of Homeland Security (DHS) has never met that standard since the law was first passed in 1996. It’s also an impossible standard to make, since the DHS has neither the bed space nor funding to do so.

It is Congress — not the executive branch — that determines how many detention beds to fund. It settled on 34,000 last year, and this year’s appropriations bill bumps the figure to 41,000.

“This Administration has removed, returned, or expelled more migrants in three years than the prior Administration did in four years,” the DHS wrote in a memo responding to the articles, a figure that includes a dip in immigration over the course of the pandemic.

“A standard requiring 100 percent detention would mean that Congress should have impeached every DHS Secretary since the Department was founded.” 

Republicans have argued that allowing this type of flouting of the law could create a dangerous precedent.

“Congress can enact whatever words it wants. The point is that those words — if they’re going to be rendered meaningless by any executive official, then there’s no point in producing legislation,” said a GOP source close to the impeachment proceedings.

“It doesn’t matter if there’s a Republican or a Democrat president. If we allow the precedent to stand that a secretary can unilaterally pick and choose what laws he’s enforcing, then it’s just going to be chaos. Both sides could take advantage of this terrible precedent of this secretary if it’s allowed to stand.”

Goldman said such logic creates its own dangerous precedent.

“If the Republicans are going to open the door to impeach a secretary because they don’t like how that secretary is doing his job, well, what happens if there’s another child separation policy? What happens if another president pulls out of the Paris climate agreement over the will of Congress? There are a slippery slope of any number of different disagreements that would then rise to the level of impeachment,” he said.

Rep. Daniel Goldman (D-N.Y.) speaks at a House Homeland Security Committee markup of Articles of Impeachment against Homeland Security Secretary Alejandro Mayorkas at the Capitol on January 30, 2024. (Allison Robbert)

Republicans have also faulted Mayorkas for creating programs that allow migrants to be “paroled” into the country even if they might not otherwise meet immigration criteria.

The DHS has used the power for Afghans, Ukrainians and migrants from certain Latin American countries.

But a report by Democrats attacking the impeachment efforts said Mayorkas was acting well within his authorities to use the power for large groups of people, as had previously been done in response to wars and global instability.

“Secretary Mayorkas has complied with the case-by-case adjudication requirement for parole applications. DHS’s parole programs allow designated populations to apply for parole, with each person’s application adjudicated on a case-by-case basis,” Democrats wrote in their report.

The articles also misstate some other details.

The resolution faults Mayorkas for leaving an agreement made under the Trump administration that would have limited U.S. asylum rights for Guatemalan asylum-seekers, though it was Blinken who terminated the agreement.

“When you look at things like an article of impeachment that references an action taken by a completely different Cabinet secretary, or things like satisfying a detention mandate that everyone knows is impossible to meet, I think this indicates some of the factual issues that will come up if there’s ever a trial in the Senate,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council.

“It really emphasizes the flaws with a lot of the factual assertions in here. This has always been a rushed process.”

Republicans also argue Mayorkas “breached the public trust” by rescinding Trump administration immigration policies, including his effort to build a border wall.

But while the articles accuse Mayorkas of terminating contracts for the wall, it does not mention that the secretary resumed construction of the wall in Texas where the Biden administration determined it was required by appropriations law.

Sunday’s articles similarly claim Mayorkas has misled Congress — an argument that primarily rests on his response to questions about whether the border is operationally secure.

During appearances before Congress, Republicans repeatedly grilled Mayorkas about whether the border was operationally secure under the definition set by the Secure Fence Act. That law creates a standard of perfection that has never been met, defining the status as one in which not a single person or piece of contraband improperly crosses the border.

Mayorkas has said one must view the law with a “layer of reasonableness,” saying he sees the law as requiring the secretary to maximize the resources they have to make the border as secure as possible, asserting to lawmakers he believes he is complying with the law. 

“I do. And congressman, I think the secretary of Homeland Security would have said the same thing in 2020 and 2019,” Mayorkas said in a 2022 exchange.

The articles also accuse Mayorkas of giving misleading comments about the vetting of Afghanistan evacuees and migrants apprehensions, without identifying the comments directly.

“They have failed to put forth evidence that meets the bar necessary for impeachment,” Rep. Glenn Ivey (D-Md.), another member of the committee, said Monday.

“They know that that’s the truth. We know it’s the truth. Tomorrow, we’re going to make sure that the American people know it’s the truth.”