When Donald Trump was impeached, and then impeached again, some Republicans warned that repeated uses of the process would lead to it being degraded and meaningless. House Republicans are now determined to prove that was true.
Early this morning, the House Homeland Security Committee narrowly voted, along party lines, to advance articles of impeachment against Alejandro Mayorkas, the secretary of homeland security. The full body is expected to consider the impeachment next week.
The entire thing is a fantasy. The impeachment is based on differences in border policy, rather than any misconduct. Even as they move it forward, House Republicans are avoiding legislation on the matter, working to snuff out a bill that would actually affect the border. And if Mayorkas is impeached, he is all but certain to avoid conviction in the Senate.
No precedent exists for such an impeachment. In fact, only one Cabinet speaker has been impeached in American history. In 1876, War Secretary William Belknap was accused of accepting kickbacks in return for lucrative federal posts. Facing impeachment, he resigned. The House impeached him anyway, but the Senate didn’t convict, in part because some members felt the resignation removed Belknap from their jurisdiction. (Belknap is getting a surprising amount of attention recently; the same question of jurisdiction came up during Trump’s second impeachment, after he’d left office.)
In contrast to Belknap’s open corruption, House Republicans’ complaint is, in short, that Mayorkas is less of a border hawk than they are. Put differently, he stands accused of serving as secretary of homeland security in a Democratic administration.
The articles allege that Mayorkas “repeatedly violated laws enacted by Congress regarding immigration and border security. In large part because of his unlawful conduct, millions of aliens have illegally entered the United States on an annual basis with many unlawfully remaining in the United States.” But experts on both constitutional law and immigration have roundly criticized the move as overreach, noting that Mayorkas is under attack for using powers that administrations of both parties have employed legally for decades.
The law professors Alan Dershowitz and Jonathan Turley, who became GOP favorites for criticizing the Trump impeachments, have flatly rejected the Mayorkas attempt as unfair and vague. Although Republicans accuse Mayorkas of flouting the laws, he really seems to be interpreting them differently. Michael Chertoff, who led Homeland Security under President George W. Bush and is a former federal judge, wrote a Wall Street Journal column defending Mayorkas and saying he was being impeached for policy differences.
The charges themselves are a mess. David Bier, an immigration expert at the libertarian Cato Institute, has picked apart the articles of impeachment and found, for example, that Mayorkas is charged with failing to follow circuit-court decisions that were reversed by the Supreme Court. Another passage appears to charge Mayorkas with using a power granted to him by Congress.
If Congress doesn’t like the laws, it could change them. But in recent years, under both Democrats and Republicans, Congress has left more and more power to the executive branch. This is especially true in the area of immigration, where bipartisan attempts at overhauls keep falling short. Because neither party can get exactly what it wants, they’ve chosen to do nothing. That has left the system riddled with holes, often sloppily patched by successive administrations.
In the same week that House Republicans advanced the Mayorkas impeachment, they have come out against a bipartisan immigration bill in the Senate. The text of the bill isn’t yet set, but it’s expected to increase security on the border, and President Joe Biden has promised to tighten entry if the bill passes. But Speaker Mike Johnson reportedly told his conference the bill is “absolutely dead.” That’s because Trump has pushed against anything that might undermine a favorite talking point. Some Republicans have openly admitted they oppose the bill because they want to keep the border as a bludgeon against Biden.
As legal experts reminded us during the Trump impeachments, the process is political. Before he became president, Representative Gerald Ford said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” But politics is a double-edged sword. Just because Republicans are within their legal rights to impeach Mayorkas doesn’t mean it’s politically wise or reasonable to do so.
The politics will look even worse if the impeachment fails in the House, where Republicans have a tiny margin. If Democrats stay unified and even a few Republicans oppose the effort, it will fail. If it goes to the Democratic-controlled Senate, the requisite two-thirds of senators won’t vote to convict Mayorkas. Leaders will try to bury it, and most Republican members there show little appetite for impeachment either.
All of this adds up to a perfect example of what I’ve called the fan-service scandal—the kind of thing that is intended to either fire up or pacify the base, but not expected to succeed or produce anything of substance. House leaders decided to move forward on the Mayorkas impeachment to try to lessen the pressure from the hard right to impeach Biden, which they felt was politically unwise and just as unlikely to succeed. A Mayorkas impeachment allows Republican leaders to tell voters, See, we’re doing something! Even if what they’re doing doesn’t, you know, do anything.