Courtesy of National Review
On February 13, the House of Representatives impeached Homeland Security Secretary Alejandro Mayorkas. The Republican Party, which holds a narrow majority in the House of Representatives, has long been critical of Mayorkas for how he handles undocumented immigration across the southern border. Specifically, they say that the number of people attempting to cross the United States-Mexico Border illegally has risen during Mayorkas’s leadership due to his lack of enforcement of legislation surrounding illegal immigration. The week prior, the GOP-led House brought up a vote to impeach Mayorkas, but the vote failed after a miscalculation of votes. However, the second time, by a vote of 214-213, with all Republicans except three members voting for the measure, Mayorkas was officially impeached. It is extremely rare for a cabinet member to be impeached as Mayorkas is the first to be impeached in nearly 150 years.
As described in the Constitution, the grounds for impeachment for any federal officer of the United States are “treason, bribery, or other high crimes and misdemeanors.” The Articles of Impeachment submitted by House Republicans accuse Mayorkas of not enforcing laws such as detaining migrants and that Mayorkas has “breached public trust.” In the report, they further call Mayorkas “a threat to national and border security.” Mayorkas has also been accused of providing false statements to Congress and obstructing oversight of the Department of Homeland Security.
Democrats and some Republicans have been very critical of the Republican effort to impeach Mayorkas. The House Democrats Committee on Homeland Security released a report before the impeachment vote with a statement asserting that Republicans are “abusing Congress’ impeachment power,” “sabotaging Secretary Mayorkas’ efforts to secure the border,” as well as calling the impeachment effort a “scam” and an effort to help Donald Trump in the presidential election. In both impeachment votes, every House Democrat who was present for the vote voted against the impeachment of Mayorkas. Republican Ken Buck (R-CO), who was one of three Republican members that voted against impeachment, said that he did not believe that Mayorkas had committed “high crime and misdemeanor” and that Republicans would lose “credibility.” After the impeachment vote was successful, President Joe Biden released a statement accusing House Republicans of playing “petty political games” and called the impeachment a “blatant act of unconstitutional partisanship.”
There has been debate among scholars as to whether the impeachment charges against Mayorkas are legally valid. Phillip Bobbitt, a constitutional scholar, said that Republicans turned a policy disagreement into a constitutional crime. Thus, the accusations that Republicans have made in their articles of impeachment may be exaggerated. Other legal scholars have also said that Mayorkas’s actions do not meet the threshold for impeachment. In January, a letter to Speaker Mike Johnson (R-LA) from a group of legal scholars said that the allegations related more to policy disagreements rather than high crime or misdemeanors. The legal scholars also wrote that the Framers of the Constitution made a “conscious choice not to allow impeachment for mere “maladministration”- in other words, for incompetence, poor judgment, or bad policy.” The scholars concluded that although they “hold a wide range of views” on Mayorkas’s immigration policies, they agreed that impeachment would not be justified based on the Constitution.
Looking forward, the next step in the process of Mayorkas’ impeachment will be sent to the Senate. Similar to recent Presidential impeachment trials, the Senate decides whether to acquit or convict. A conviction means that the federal official is removed from office, while an acquittal would mean they stay in office. The bar for a conviction in the Senate is higher than impeachment in the House. Impeachment in the House requires a simple majority, while a conviction in the Senate requires a two-thirds majority. It is improbable that Mayorkas will be convicted as Democrats hold a slim majority in the Senate. This means that for a conviction, at least eighteen Democrats must vote with all Republicans to convict. Given that some Republicans, such as Senators Mitt Romney (R-UT) and Lisa Murkowski (R-AK), have expressed skepticism about the impeachment effort, it is not a guarantee that all Republican Senators will vote to convict. However, others, such as Senator John Cornyn (R-TX), have committed to voting to convict.
There is an expectation that Democratic Senate Majority Leader Chuck Schumer (D-NY) will seek to expedite the process as there is almost no chance that it will lead to a conviction. There is also the possibility that Schumer will seek to dismiss the trial, which would require a simple majority. However, some Republicans have pushed for a full impeachment trial. As there are many pressing issues nationally and globally that need to be addressed, expediting the impeachment process may be the best course of action for the Senate, especially since many legal scholars have questioned the validity of the impeachment charges.