Legal experts counter GOP claims that Mayorkas broke the law

Republicans plan to take a historic vote Tuesday to impeach Homeland Security Secretary Alejandro Mayorkas and have focused their central argument on claims he has broken immigration law.

But a review of the statutes the GOP points to in its articles of impeachment as well as how the secretary has carried out those laws suggests a difference in policy approaches as opposed to illegal activity.

Immigration law experts say Mayorkas is being targeted for using immigration statutes in ways that differ little from his predecessors.

Still, that has become fodder for what would be the second-ever impeachment of a Cabinet secretary as figures on the left and right argue the GOP case falls short of the standard for impeachment.

“This really is about policy differences and politics. These arguments that he’s violated the law and violated court orders are a smokescreen,” said Doris Meissner, a former commissioner of the Immigration and Naturalization Service, a precursor to the Department of Homeland Security (DHS).

“There are significant policy differences here.”

Republicans dedicate 15 of their 20-page articles of impeachment to Mayorkas’s “willful and systemic refusal to comply with the law,” going through numerous provisions of the Immigration and Nationality Act.

“He has willfully and systematically refused to comply with the laws passed by Congress and breached the trust of Congress and the American people. The results have been catastrophic and have endangered the lives and livelihoods of all Americans,” Rep. Mark Green (R-Tenn.), the chair of the House Homeland Security Committee, said as the panel was marking up a resolution to impeach him.

But while Republicans have spent ample time arguing that violation of immigration laws alone is grounds for impeachment, they haven’t devoted as much time to breaking down how Mayorkas has done so.

The bulk of the GOP argument fixates on language in the law that says migrants “shall” be detained while they await removal from the country.

It’s a standard that has never been met — the U.S. didn’t have enough beds to do so even in 1996, when the statute was updated.

It would be a logistical impossibility to hold in detention every migrant who crosses the border, and no administration has done so.

Republicans taking the word “shall” as “an absolute command from which the secretary of Homeland Security cannot deviate is a radical departure from the way that every presidential administration, including Republican presidential administrations, have interpreted that exact language,” César Cuauhtémoc García Hernández, a law professor at Ohio State University, told The Hill.

“The inevitable conflict is that there is a law that Congress does not equip the department to enforce and so the leadership of the department has to decide who to prioritize … Politicians disagree over exactly who to prioritize, but fundamentally, one administration after another is simply choosing who to go after given the reality that they cannot target everyone.”

Congress funds about 40,000 detention beds, well short of Southwest border encounters that have hovered between 150,000 and 200,000 each of the last several months. Those who do not have a legal basis to remain in the country have been removed. 

“If they’re partially funded, it’s only possible to partially implement them,” Meissner said, adding that the law has always been “subject to certain kinds of discretion.”

The Biden administration has tried to limit the use of detention, using electronic monitoring and requiring people to appear in court at a later date.

“This is not simply flagging people into the country. These people are in legal proceedings,” Meissner said.

While the GOP has been critical of such “notices to appear,” they were also previously used by other administrations.

“That’s a very common way of managing the immigration court docket. The alternative is to detain every single person who is in immigration court proceedings. And so far, Congress has been willing to spend billions of dollars a year paying for detention beds, but that’s far short of what it would take in order to hold in custody 100 percent of people who are issued notices to appear in immigration court,” García Hernández said.

“And so Secretary Mayorkas is overseeing a department that is doing more or less what every prior administration has done, including Trump’s administration.”

In making their case, the GOP rattles off a series of statistics, citing encounters at the border, including unaccompanied children, money spent by cities to address migrant surges and the low rates of asylum cases being approved by immigration judges — the last a well-established dynamic before Mayorkas took office.

It similarly relies on DHS data about fentanyl it has seized and those on the terror watch list the agency has prevented from entering the country.

The articles of impeachment also take Mayorkas to task for “paroling” migrants into the country, using such programs to admit those who might not otherwise qualify under immigration law.

To Republicans, the use of parole is a way to “subvert” immigration laws. 

The Biden administration has used parole programs for those fleeing war, including Ukrainian and Afghan citizens — a dynamic well in line with how it’s been used previously. But it’s also allowed parole for those from Cuba, Haiti, Nicaragua and Venezuela — all countries with political strife and controversial leaders.

DHS has argued they are meeting parole requirements under law, admitting migrants only on a case-by-case basis.

“It is true that parole is being used now at a scale that is unprecedented. At the same time, it’s being used as a way of attempting to redirect flows so that there are other avenues for people to come to the country than crossing illegally,” Meissner said.

“I don’t think that the use of parole is breaking the law. The use of parole is trying to leverage one of the few policy tools that’s available to the administration in an effort to try to redirect flows … People who are criticizing that — they don’t want flows to be redirected. They want flows to be stopped.”

García Hernández agreed, noting that while Republicans may not like the policy, the Biden administration’s use of parole is not unlawful.

“Parole is a law that was enacted by Congress, and it’s flexible. That’s the way Congress wanted it,” he said.

Mayorkas, he said, is “doing exactly what Republican and Democratic presidential administrations have done in the past, which is to decide that there’s some group of people that merits this special exercise of welcoming into the United States and having what is rather flexible parole power to help them.” 

While it’s not listed as an argument in their impeachment articles, Republicans have also repeatedly accused Mayorkas of violating court orders.

That claim largely rests on complaints that Mayorkas did not enroll enough migrants in the Remain in Mexico program after a court ordered the Biden administration to resume the policy amid a broader lawsuit to rescind the program.  

Republicans argue the Biden administration didn’t act in good faith to restore the Trump-era program — even though they forced more than 5,500 migrants to wait out their asylum cases in Mexico. DHS ultimately won the court battle.

García Hernández noted that no court has reprimanded Mayorkas or DHS for any failure to comply with a court order.

“I also don’t know of any instance in which Secretary Mayorkas has been held in contempt of court or sanctioned for violating a court order, which is what would happen if a court decided that he was violating a court order himself or directing his staff that he supervises to violate a court order,” he said.

Rep. Dan Goldman (D-N.Y.) faulted the GOP for pointing to preliminary wins in court — usually blocking new policies and preserving the status quo as the case continued — or lower court orders that were later overturned as evidence of Biden administration losses in court. 

“Secretary Mayorkas has not disregarded any court order. Not one. Not one,” Goldman said during the markup of the articles last week.

“He has not defied any court order. You have gone to the court to try to prevent him from doing his job, that’s true, and there have been judges who entered preliminary orders. He has adhered to the law in every way he’s been required to do.”