Impeaching Mayorkas: The House’s Duty

Steve Bradbury /

There’s growing momentum among the new Republican majority in the House of Repre­sen­ta­tives to pursue the impeach­ment of Homeland Security Secretary Ale­jandro Mayor­kas.

The secretary has repeatedly ignored the immigration laws he swore to uphold, deliberately instituted policies that have increased the flow of illegal immigrants, made false state­ments to Congress and mis­led the public about his open-border policies, and presided over the largest influx of illegal immigrants in American history.

Not surprisingly, the question of impeach­ment is getting par­tic­u­lar atten­tion from the House’s Con­gressional Border Security Caucus, whose members are most concerned over the border fiasco we’re experiencing. Last week, Rep. Andy Biggs of Ari­zona, co-chair of the caucus, con­vened an off-site dis­cus­sion forum for interested mem­bers to hear from witnesses about the unacceptable misbehavior of the secre­tary.

What’s more surprising perhaps is that not all mem­bers of Con­gress are part of the bor­der cau­cus. They should be. Under Mayorkas, every con­gres­sional district has become a bor­der district: Each month, the Depart­ment of Home­land Security releases tens of thou­sands of illegal aliens into the United States with­out ade­quate vetting and arranges for nongovern­mental organ­i­za­tions and private con­tractors to transport these aliens sur­rep­ti­tiously to all corners of the country, burdening local communities and imperiling the safety of their residents.

These practices were spot­lighted in a recent report pub­lished by The Heri­tage Foun­da­tion.

Now there’s a new Heri­tage Foun­da­tion Special Report that ana­lyzes in depth the legal and factual grounds for impeach­ing Mayorkas. The report—which I co-authored along with Hans von Spakovsky, senior legal fellow in the Meese Cen­ter for Legal and Judicial Studies at Heri­tage, and Lora Ries, director of Heri­tage’s Center for Border Security and Immi­gra­tion—groups Mayor­kas’ impeach­able offenses into three cate­gories:

Since his first day in office, Mayorkas has acted to open the border and under­mine the law: He terminated construction of the border wall system and announced he was shutting down the Remain in Mexico program and the Title 42 public health exclusions that had significantly reduced the flood of illegal aliens under the previous admin­istra­tion.

He closed Department of Homeland Security detention facilities and stopped cooperating with state and local law enforcement agencies along the border.

He also vowed to welcome most aliens who cross our border illegally (especially unaccompanied minors) into the U.S. as “asylum seekers” who warrant human­i­tarian entry, even though he well knows that almost all of them are coming here for eco­nomic rea­sons and don’t meet the asylum requirements of federal immigration law (a “well-founded fear of persecution” in their home countries).

These actions and statements have enticed millions of aliens in record numbers, including hundreds of thou­sands of unaccom­panied children, to make the dangerous journey to our south­ern border, putting them­selves at the mercy of the brutal Mexican drug cartels and human smugglers. The result has been a human­i­tarian catas­trophe.

And what happens after they cross the border? Mayorkas is granting them mass parole in huge numbers in violation of the clear terms of the Immi­gra­tion and Nation­ality Act and contrary to the act’s established system for refugee admissions.

His parole policies are allowing illegal aliens to be released freely into the country (with work authorizations in most cases), rather than be detained while they await a hearing about their request for asylum. The reality is that once they’re released, most never leave, even if a judge orders their removal.

He’s also directed Immigration and Customs Enforcement to refrain from taking action to remove most of the aliens who are deportable under the law (those who’ve entered the country illegally and are not eligible for asylum—which includes most illegal border crossers—and those with certain criminal records or who pose a danger to public safety).

The num­ber of deportation cases  Immigration and Customs Enforcement is pursuing is now at historic lows, even though the number of illegal entries is at record highs.

In short, Mayorkas is overseeing a broad-scale suspen­sion of immigration laws and is acting with reck­less disregard for the enor­mous harm done to America’s communities.

Among the illegal aliens mass-released into the United States are unknown numbers of violent criminals, gang mem­bers, drug traffickers, human traffickers, and poten­tial terrorists.

In addition, all regions of the country are being flooded with deadly fentanyl from Mexico—fentanyl which killed more than 71,000 Americans from overdoses in 2021. The drug cartels are reaping huge profits as they’ve gained effective con­trol of our border and stronger net­works of influence through­out the U.S.

In recent weeks, Mayorkas has shifted to a new strategy of pre-registering aliens out­side the U.S. for mass entry using a mobile phone application known as “CBP One.” This shift to the mobile app reduces some­what the num­ber of aliens crossing the border illegally between ports of entry because the thou­sands who pre-register with the app are now ushered in through the official ports of entry instead.

But it’s merely a shell game. Record numbers of illegal aliens are still coming into the U.S.—it’s just that the Biden administration falsely claims that they’ve slowed down the number of illegal border crossings because they’re now allowing illegal immigrants to come in through ports of entry. The administration also falsely labels this scheme a “lawful pathway.”

Reducing uncontrolled border crossings is a good thing, of course, but this CBP One entry pipe­line is just as unlaw­ful as the prior approach because it still relies on illegal mass parole and it still circum­vents the refugee admissions pro­ce­dures.

In important respects, it’s even more pernicious: It allows Mayorkas to cloak his open-border policies in a veneer of order­li­ness, which, if left unchecked, threatens to insti­tu­tion­alize the vio­la­tions of law and make them permanent.

From my days as head of the Office of Legal Counsel in the Justice Department, I’ve spent much of my career defending executive power and the exercise of executive dis­cre­tion, including in programs that tested the bounds of the law. But I’ve never seen a situation like this one, where a principal officer of the executive branch is acting in such flagrant defiance of the law on such a sweeping scale and so syste­matically.

There’s much more going on here than a mere disagree­ment over policy discretion, which wouldn’t be a proper basis for impeachment. Rather, by assuming the auth­ority to sus­pend key provisions of the immigration laws single-handedly (certainly with the knowledge and approval of the president and his administration), King Mayorkas is actively usurp­ing the powers of Con­gress.

Refusing to enforce the laws he’s sworn to uphold, pursuing policies that weaken U.S. sov­er­eignty and security, and lying to Congress and the American people: Each qualifies as gross misconduct in office that does serious harm to our political system and our con­sti­tu­tional order. That’s exactly what the Framers meant by the phrase “high Crimes and Misdemeanors” in the impeach­ment clause.

The serious nature of these impeachment charges is confirmed by the fact that the Biden admin­istration has just hired a high-priced New York law firm to defend Mayor­kas and his policies against impeachment.

Meanwhile, 20 states led by Texas have filed suit in federal court to block his unlaw­ful use of mass parole and the CBP One process, and they may well score a victory. But don’t expect the courts to save the day—they can’t secure the border or pro­tect American sovereignty from a secretary who’s bent on under­mining it. Multiple judges have already ruled against Mayorkas, and yet his policies persist, as do their terrible consequences for the country.

Some ask what’s the point of impeachment; won’t the Senate, as currently con­sti­tuted, fail to convict Mayorkas and remove him from office? But House members shouldn’t try to anticipate the Senate’s job.

The question at hand is whether the House will stand up for its own constitutional role and do its duty to the American people. An impeach­ment inquiry will serve to elevate and focus the public’s atten­tion on these critical issues in a way that ordinary oversight hearings simply cannot.

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