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Impeachment Case Against Mayorkas Ignores Government’s Immigration Powers


House Republicans’ impeachment case against Alejandro N. Mayorkas, the homeland security secretary, boils down to a simple allegation: that he has broken the law by refusing to enforce immigration statutes that aim to prevent migrants from entering the United States without authorization.

The Homeland Security Committee approved articles of impeachment against Mr. Mayorkas on a party-line vote early Wednesday morning, setting the stage for a vote of the full House next week. If impeached, he would be only the second cabinet secretary to receive that punishment in American history, the first in 148 years and the only one to be indicted by Congress for nothing more than carrying out the policies of the president he serves.

Republicans have moved forward with the process even though constitutional scholars, past secretaries of homeland security and even some former legal advisers to former President Donald J. Trump have noted that nothing Mr. Mayorkas is accused of rises to the level of high crimes and misdemeanors, the standard for impeachment laid out in the Constitution.

The G.O.P. argues that the secretary’s failure to uphold certain aspects of immigration law is itself a constitutional crime. But in the United States, the president and his administration have wide latitude to control the border, and Mr. Mayorkas has not exceeded those authorities.

Here’s a look at the holes in the impeachment case against him.

The impeachment articles that the House Homeland Security Committee approved accuse Mr. Mayorkas of flouting several provisions of the Immigration and Nationality Act that say deportable migrants “shall be detained” until they can be removed from the country. They charge that the secretary pursued a “catch and release” scheme to allow inadmissible migrants into the United States, knowing that it would be difficult or even impossible to ensure they would later appear in immigration court for removal proceedings.

What the charges do not take into account, however, is that Mr. Mayorkas also has the legal authority to determine which migrants to prioritize for detention, given limited bed space and long backlogs in the immigration courts.

“Congress loves passing laws that are impossible to execute,” said Aaron Reichlin-Melnick, the policy director at the American Immigration Council, adding that enforcing detention mandates is often “a question of resources.”

The United States has not had enough detention beds to accommodate the number of migrants awaiting removal proceedings for several years, well before President Biden took office. Even the Trump administration released migrants into the country, because the maximum detention capacity — about 55,000 in 2019 — was not enough to accommodate the number of arrivals seeking entry. Mr. Trump’s Remain in Mexico policy requiring some migrants to wait for their immigration court dates outside the United States, which Republicans want to reinstitute, did not apply to all migrants making claims at the border.

One of the impeachment articles says Mr. Mayorkas “paroled aliens en masse in order to release them from mandatory detention,” again with the intent of undermining the law.

But the immigration act gives the executive branch parole power to let migrants temporarily live and work in the United States for humanitarian reasons, or if their admission would be to the public’s benefit. Decisions about whom to parole are to be made on a case-by-case basis, and there is no restriction as to what criteria the secretary can consider when determining who qualifies. There is also no statutory cap on how many migrants can be allowed into the country under the authority.

Several past administrations, including those of former Presidents Trump, Barack Obama and George W. Bush, have relied on parole authority to bring members of certain vulnerable migrant groups into the United States.

The Biden administration has built on pre-existing programs allowing nationals of certain economically ravaged Central and South American countries with sponsors already in the United States to seek parole. It has also inaugurated similar pathways for Afghans and Ukrainians fleeing war, and introduced a mobile app known as C.B.P. One to streamline migrants through ports of entry.

House Republicans have sought to close down those avenues, passing legislation last year that would shutter nearly all of them.

House Republicans have also charged Mr. Mayorkas with lying under oath about the state of the border when he testified in 2022 that the department had “operational control.” He later explained that he was using a definition employed by the Border Patrol that defines “operational control” as “the ability to detect, respond and interdict border penetrations in areas deemed as high priority.” But that differs from the standard in a 2006 law called the Secure Fence Act, which defines the term as the absence of any unlawful crossings of migrants or drugs.

Democrats are solidly opposed to the Republican drive to impeach Mr. Mayorkas, which they call a political stunt that turns a constitutional process on its head. If Mr. Mayorkas is impeached, the Democratic-led Senate is all but certain to acquit him in a trial that would require a two-thirds majority to convict and remove him from office.

But Republicans insist they are within their rights under the Constitution to hold Mr. Mayorkas personally responsible for policy failures at the border.

“For three years, Secretary Mayorkas has willfully and systemically refused to comply with the laws enacted by Congress,” Representative Mark E. Green, Republican of Tennessee and the chairman of the Homeland Security Committee, said in a statement after the panel approved the impeachment articles.

“Make no mistake, Secretary Mayorkas’s lawlessness is exactly what the framers of our Constitution designed impeachment to remedy. The historical record makes it clear — Congress holds impeachment power to hold accountable public officials who refuse to do their duty, and to deal with grave harms to our political order.”



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