In the months since Republicans regained control of the U.S. House of Representatives following the 2022 midterms, they have shown little interest in substantive legislation, and have instead announced a spate of “investigations” of topics thought likely to be politically useful. There is also a vocal faction that wants to transform investigations into impeachments of either president Biden or his cabinet officers. One cluster of House Republicans, led by Reps. Andy Biggs (R-AZ) and Pat Fallon (R-TX), has proposed impeaching Department of Homeland Security (DHS) Secretary Alejandro Mayorkas for his role in carrying out Biden’s immigration policies. Biggs and Fallon have each introduced articles of impeachment against Mayorkas. Last month, the Heritage Foundation produced a sort of “brief” supporting the Briggs-Fallon crusade.
In truth, the Mayorkas impeachment campaign amounts to no more than this: The Trump administration used executive authority to institute a wide array of novel restrictions on immigration. The Biden administration, using the same executive authority, has reversed some (though by no means all) of those restrictions. Republicans disapprove of Biden’s partial restoration of the pre-Trump status quo on policy grounds, but more importantly they think highlighting Biden’s actions will help them in 2024. The campaign to impeach Secretary Mayorkas simply gives a face and a focus to this partisan political initiative.
That said, exposing the Mayorkas impeachment push for the cynical stunt it is requires a careful look at the constitutional and factual arguments made by Mayorkas’s pursuers.
Republicans, the Heritage Foundation and Constitutional Standards for Impeachment
A cabinet secretary is a “civil officer” subject to impeachment under Article 2, Section 4 of the Constitution, for commission of “Treason, Bribery, or other high Crimes and Misdemeanors.” The phrase “high Crimes and Misdemeanors” is not limited to indictable crimes, nor even to violations of existing statutes or judge-made caselaw. Historically, the phrase has been agreed to cover corruption; extremely severe instances of incompetence, neglect of duty, or official malpractice; abuse of power; betrayal of the nation’s foreign policy interests; and subversion of the Constitution. It is, and was intended to be, a flexible standard, albeit a stringent one that excludes ordinary policy disagreements between the executive branch and a transient majority of the House.
This is not to say that the Constitution can prevent a resolutely partisan majority of the House of Representatives from impeaching either a cabinet officer or a president simply because it doesn’t like administration policy. Article I grants the House the “sole power of impeachment,” and a decision to impeach any civil officer is generally conceded to be unreviewable by the courts. Hence, as a matter of cold realpolitik, then-Congressman Gerald Ford was correct when in 1970 he famously declared that, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
However, Ford was plainly wrong about the Founders’ understanding of “high Crimes and Misdemeanors” and about the precedent created by subsequent impeachment cases. No one now seriously disputes that impeachment, though a flexible remedy, is not available for simple policy disagreements and should be limited to very serious kinds of official misbehavior. Such misbehavior need not constitute actual crime or personal corruption, but the Constitution and historical practice demand that it involve grievous abuses of official power or grave derelictions of duty in violation of statutory commands or established constitutional norms.
A fact that should at least cause some blushes among the impeach-Mayorkas crew is that every Republican co-sponsor of the Biggs or Fallon impeachment articles who was in office during Trump’s term opposed both his impeachments, as did the Heritage Foundation and those who wrote under its auspices about those crises. Among Republicans defending Trump, the basic constitutional theme was that the phrase “high Crimes and Misdemeanors” sets an extraordinarily high bar for impeachment. Trump’s defenders argued that impeachment requires criminal conduct, or conduct akin to a crime, or at least a plain violation of a statute or otherwise settled law. Many resisted the proposition that abuse of official power could ever be impeachable and all but a tiny handful waved away the allegation in both Trump impeachments that his violations of the oath to take care that the laws be faithfully executed merited impeachment and removal.
In a remarkable display of intellectual elasticity, those demanding Mayorkas’ removal have now adopted virtually every jot and tittle of the constitutional position they indignantly rejected in Trump’s cases. The Heritage brief embraces impeachment as a flexible and expansive remedy, and goes so far as to cite as authority the House Judiciary Committee report in support of the first Trump impeachment. While I am gratified to see some Republicans reverse course and embrace a broadly correct view of the Constitution’s impeachment provisions, Mayorkas’s critics nonetheless fail to make even a colorable case for impeachment employing that standard.
The Supposed Violations of Immigration Law
The roots of the attack on Secretary Mayorkas lie in dramatic changes to immigration policy instituted under the Trump administration, which sought to severely restrict both legal and illegal immigration. The most public manifestation of this effort was Trump’s campaign for a border wall, but the real heft of the initiative lay in more than 400 executive actions covering a wide array of immigration policies.
The Biden administration has taken a more expansive view of immigration policy and has reversed a significant number of Trump’s executive actions. Executive action by one presidential administration to undo the executive action of its predecessor is not in itself illegal, unconstitutional, or even colorably impeachable. Therefore, Secretary Mayorkas’s pursuers have been obliged to allege that his actions in furtherance of president Biden’s immigration policy are not merely undesirable, but violate his oath of office to support and defend the Constitution by, in the words of the Heritage memo, “disregarding, defying, undermining, acting inconsistently with, and outright breaching the legal duties and responsibilities of his office.”
The specific allegations supporting this contention are so various and scattershot that addressing them all is beyond the scope of this article. Here I consider only the main arguments concerning “parole” of undocumented migrants and control of the southern border generally.
Immigration Detention and Parole
Every day, thousands of aliens – persons not U.S. citizens — enter, or try to enter, the United States. Such aliens fall into three very broad categories.
The first are aliens legally entitled to enter, temporarily or permanently, who are admitted as a matter of routine by immigration officers at ports of entry. These persons include “lawful permanent residents” (colloquially, those who hold “green cards”), “non-visa nationals” (citizens of designated countries who can enter the U.S. without obtaining special permission in the form of a visa), and those with visas, such as students, tourists, and those entering for business or work.
At the other end of the spectrum are aliens who have no right to enter or remain in the U.S., and not even a plausible claim to do so. In this class fall most of the migrants who try to slip across the border undetected and disappear into the interior, as well as many who overstay their visas. If caught, most such folks will be immediately expelled after a truncated process called “expedited removal,” will voluntarily return whence they came via “voluntary departure,” or will be deported following proceedings before an immigration judge.
The third class of would-be immigrants are those who approach or cross the border without a previously issued visa or other documentation entitling them to immediate entry, but who can nonetheless make at least a plausible claim to enter or remain as a refugee seeking asylum or pursuant to some other established program. Eligibility requirements for asylum or various forms of temporary legal status are specified in the Immigration and Nationality Act (INA) and in executive orders, agency regulations or program announcements promulgated pursuant to congressional delegations of authority under the INA. For example, nationals of countries designated by the Attorney General can be granted “temporary protected status” (TPS) under 8 C.F.R. §244. Whether an undocumented alien qualifies for asylum, TPS, or some other program will often not be determinable during the alien’s first contact with an immigration officer. An alien with at least a plausible claim for admission under one of these programs must apply, present supporting evidence, and obtain a determination from an immigration judge.
The immediate question in all cases of aliens with at least a colorable claim to enter or remain is what will happen to them while their claims are adjudicated. Practically speaking, there are only three options. The alien can be detained – locked up in a holding facility – while his case is processed. Alternatively, the alien can be “paroled,” i.e., released into the United States on conditions pending resolution of his application. Finally, the alien could in theory be returned to the country from which he entered pending processing of his claim. In the case of migrants crossing from Mexico, all three options are legally authorized.
Section 1225(b)(2)(A) of the Immigration and Nationality Act states that if “an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” However, 8 U.S.C. §1182(d)(5)(A) explicitly permits immigration authorities to parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” Finally, pursuant to 8 U. S. C. §1225(b)(2)(C), an alien entering across the Mexican or Canadian land border “may” be returned to the country from which he entered pending resolution of his immigration claims.
The interaction of these three statutory sections is at the core of the impeachment case against Mayorkas. For example, the Biggs impeachment petition and the Heritage brief both allege that §1225(b)(2)(A) makes detention absolutely mandatory and that, by permitting significant numbers of aliens with pending immigration claims to be paroled rather than be detained or returned to Mexico, Secretary Mayorkas “willfully violated” (Biggs) or “deliberately violated” (Heritage) the law. However, this argument collapses under even modest scrutiny.
Secretary Mayorkas has Lawfully Exercised his Statutory Parole Authority
Section 1182(d)(5)(A) expressly grants the executive branch power to parole aliens based on “urgent humanitarian reasons or significant public benefit.” Therefore, Mayorkas’s pursuers focus on the phrase in §1182(d)(5)(A) requiring “case-by-case” determination of parole claims. They contend that the Secretary has exceeded his statutory authority by adopting parole policies and programs applicable to groups (what they call “mass parole”) rather than treating every parole application “case-by-case.”
However, the “case-by-case” language of §1182(d)(5)(A) self-evidently does not oblige either the DHS Secretary or his subordinates to make a completely individualized and unguided determination of the humanitarian or public interests relevant to each applicant for parole. Given that tens of thousands of would-be immigrants seek parole every month, a system of individualized, wholistic, standardless parole would be systemically crippling, unfairly arbitrary, and frankly fatal to sensible immigration policy. Instead, U.S. immigration authorities in every presidential administration have systematized the exercise of §1182(d)(5)(A) parole authority by issuing executive orders or determinations by the U.S. Customs and Immigration Service or its predecessors published in the Federal Register which create standards and programs for adjudicating parole applications. Such standards and programs identify preferred and disfavored humanitarian considerations, or favor or disfavor immigrants from particular countries or regions because their parole or exclusion is determined to have the “public benefit” of furthering foreign or domestic policy interests of the United States.
Considered carefully, the position of Mayorkas’s pursuers is that the “case-by-case language” of §1182(d)(5)(A) strips the Department of Homeland Security of any authority to systematize immigration parole or harmonize parole policy with U.S. domestic or foreign policy. That is not, and never has been, the law.
Instead, the way immigration parole works – and has always worked – is that each parole application is considered in light of statutorily and administratively approved standards and programs. Those whose circumstances fit within the parameters of extant standards and programs are likely to be granted parole. Those who do not fit are unlikely to be paroled. In a system of law, this is “case-by-case” determination.
In addition, the Heritage brief lists a number of particular parole programs it casts as abuses by Secretary Mayorkas. However, each of the listed programs was expressly authorized as an exercise of §1182(d)(5)(A) parole authority serving humanitarian or public benefit purposes. Moreover, virtually none of the listed programs were launched by the Biden administration or Secretary Mayorkas. Some, such as the Haitian Family Reunification Parole Program and the Central American Minors Parole Program were Obama era initiatives. One, the Cuban Family Reunification Parole Program, began in 2007 under president George W. Bush. The Filipino War Veterans Parole Program was established under Obama in 2016, but is part of a decades-long controversy over immigration preferences for Filipinos who fought on the American side in World War II. Secretary Mayorkas’s only involvement in the foregoing programs was to restart them after the Trump administration suspended their operation. The Secretary of Homeland Security does not violate immigration law or the Constitution by employing statutorily delegated authority to implement presidential policy.
Immigration System Capacity is a Proper Consideration in Parole Policy
In exercising his undoubted parole authority, the DHS Secretary is entitled not only to adopt parole programs for particular groups, but to consider the undisputed fact that the federal government lacks the capacity to detain all aliens present in the U.S. awaiting immigration rulings. As of FY 2022, the immigration court system had a backlog of 1.8 million cases, some 750,000 of which involved asylum applications. The average processing time per case is now 855 days. ICE detention facilities currently hold about 24,000 people. During the Trump administration, they held up to 53,000. By comparison, the federal prison system now has 157,000 inmates. The combined state and federal prison population of the entire United States is about 1.2 million. Thus, for the federal government to detain all 1.8 million aliens with a pending immigration case would require building a new immigration-only detention system to accommodate roughly 1.75 million more people than its maximum capacity, a system twelve times as large as the entire federal prison system and 50 percent larger than all federal and state prisons combined.
The number of aliens subject to detention pending adjudication could be reduced, albeit over a period of years, if Congress approved additional resources for the immigration court system allowing it to reduce processing times. However, Congress has persistently refused to appropriate funds sufficient either to adjudicate immigration cases efficiently or to detain all those awaiting adjudication.
Practically speaking, therefore, U.S. immigration authorities have only one option for the majority of persons encountered in the interior with colorable claims for admission requiring adjudication. They cannot legally be summarily expelled and their numbers far exceed the holding capacity of U.S. immigration detention facilities. Therefore, for both “humanitarian” and “public benefit” reasons, §1182(d)(5)(A), the majority must be paroled. To impeach Secretary Mayorkas for paroling persons the government has no immediate right to expel and no physical capacity to detain is to condemn him for failing to do what Congress’s own decisions have made impossible.
The Biden Administration has the Legal Right to Terminate Trump’s “Remain in Mexico” Program
Mayorkas’s critics make a different argument about Biden administration parole policy at the Mexican border. In 2019, largely in response to the growing number of family group asylum seekers traveling to the Mexican border from Central America, Trump’s Secretary of Homeland Security, Kirstjen Nielsen, invoked 8 U. S. C. §1225(b)(2)(C) to create a new program known formally as the Migrant Protection Protocols (MPP), but popularly as “Remain in Mexico.” MPP required non-Mexican nationals seeking entry at the Mexican border to be returned to Mexico until their cases were decided by U.S. immigration authorities. Prior to Trump, neither Democratic nor Republican presidents had made significant use of this option. Trump’s decision to employ MPP was highly controversial, both on humanitarian and foreign relations grounds. Forcing migrant families seeking asylum to wait on the Mexican side of the border created a large, vulnerable, unhoused population for which Mexico necessarily, but unwillingly, had to assume responsibility.
Nonetheless, MPP was a legal exercise of presidential authority. And one can fairly argue that it worked in the sense of discouraging Central American asylum seekers from traveling to the Mexican border and from pursuing their applications once they were returned to Mexico. However, president Biden believed that the humanitarian and foreign policy disadvantages of the program outweighed any desirable results. On the first day of his presidency, he declaredhis intention to terminate “Remain in Mexico.” In June 2021, Secretary Mayorkas issued a memorandum terminating the program.
Mayorkas’s would-be impeachers claim that termination of MPP was illegal and is itself a ground for impeachment. But that argument was recently gutted by the U.S. Supreme Court. In 2021, Republican attorneys general in Texas and Missouri sued to prevent termination of “Remain in Mexico.” They argued that §1225(b)(2)(A) requiring detention of migrants pending resolution of claims to remain is mandatory; that, notwithstanding §1182(d)(5)(A), the DHS Secretary lacks the authority to parole large numbers of persons into the U.S. on a programmatic basis; and therefore that returning migrants who cross the Mexican land border to Mexico is the only legal option if U.S. authorities have insufficient detention capacity. A Trump-appointed district judge in the Northern District of Texas bought this claim and enjoined termination of the program. The Fifth Circuit agreed. But in June 2022, in Biden v. Texas, the U.S Supreme Court overruled the lower courts.
Chief Justice Roberts’ opinion found that detention is not mandatory under §1225(b)(2)(A) because §1182(d)(5)(A) grants parole authority. Nor, said Roberts, is an administration obliged to adopt a return to Mexico policy if the government lacks the capacity to detain all would-be migrants. Roberts emphasized that the statute authorizing return across the Mexican land border is permissive, saying only that aliens “may” be returned. In short, the U.S. Supreme Court found that the Biden administration is every bit as entitled to revoke the “Remain in Mexico” program as the Trump administration was to adopt it. Remarkably, the Heritage brief in favor of impeaching Mayorkas does not even mention the Supreme Court’s opinion in Biden v. Texas.
It is true that Texas and Missouri have since returned to the same district judge and obtained a stay of the termination of MPP, this time by claiming that Mayorkas’s formal explanation of the termination failed to comply with the requirements of the Administrative Procedures Act. But the district court opinion is, at best, a tendentious reading of both the facts and the APA, almost certain to be overturned on appeal. In any case, the allegation that a cabinet secretary failed to dot the “i’s” and cross the “t’s” required by the APA is hardly the stuff of which a serious impeachment case is made.
Moreover, on Feb. 21, 2023, the Biden administration announced a new policy creating a rebuttable presumption against grants of asylum to claimants who reach the U.S. border through a third country and did not seek asylum in that country. Inasmuch as this new rule covers virtually all Central American migrants who travel through Mexico to the U.S. southern border, immigrant rights advocates are passionately protesting the policy as a de facto reinstatement of Trump’s “Remain in Mexico” scheme.
In short, the primary southern border impeachment argument of Mayorkas’s critics fails as a matter of law because the Supreme Court held that the Secretary had the legal power to terminate MPP. And it fails even as a convincing partisan smear because, in practice, the Biden administration has instituted policies governing migration from Mexico only moderately less restrictive than Trump’s.
Prioritizing Deportation of Criminal Aliens is Not an Exercise of an Improper “Dispensing Power”
Obama administration policy for aliens encountered in the U.S. interior was to focus the inescapably limited arrest, detention, and litigation resources of DHS on apprehension and deportation of recent arrivals and aliens with criminal records. Trump abandoned this approach in favor of an undifferentiated policy of attempting to seize and deport anyone illegally present in the country. The Biden administration has essentially reverted to the Obama model, prioritizing deportation of aliens with criminal records and recent arrivals.
The Heritage brief characterizes this change in enforcement emphasis as a constitutional offense. To lend a gloss of superficial erudition to the charge, the brief nonsensically claims the Biden policy is analogous to an exercise of the “dispensing power” employed by Britain’s Stuart kings, condemned by England’s Bill of Rights in 1689, and arguably disapproved of by the Framers of the U.S. Constitution.
The Heritage authors plainly know little about the dispensing power. By roughly 1600, a dispensation was a kind of royal license to ignore an otherwise applicable statute, used primarily to give recipients commercial advantages, sometimes amounting to monopolies or favorable trade concessions. The key point is that it was an official permission to engage in future conduct that would otherwise violate an existing law. Nothing done by Secretary Mayorkas fits that description. Changing DHS immigration enforcement priorities gives no one official permission for future violations of immigration law. Nor does it pardon past violations. It is simply an exercise of the government’s undoubted power of prosecutorial discretion. (A challenge by Texas and Louisiana to the changed Biden priorities is pending in the Supreme Court. Given the tenor of the December 2022 oral arguments, the states seem unlikely to prevail.)
One can fairly argue that Trump’s enforcement policy was preferable to that of Obama and Biden. But choosing the Obama-Biden approach is not remotely an impeachable offense.
The Claim that Secretary Mayorkas “Lied” to Congress is Unsupported
Both the Fallon impeachment petition and the Heritage brief lean heavily on the claim that Secretary Mayorkas is impeachable because he “lied” to Congress. An executive branch officer may properly be impeached if he or she has committed perjury in congressional testimony or otherwise deceived Congress by providing materially false information on a matter of consequence. But Secretary Mayorkas has done neither of those things.
The allegation of “lying” to Congress in the Fallon petition is based on a single contentious exchange between Secretary Mayorkas and Rep. Chip Roy (R-TX) during an April 28, 2022, hearing of the House Judiciary Committee. The subject was the text of the 2006 Secure Fence Act. The Act required that, within 18 months of its enactment, “the Secretary of Homeland Security shall take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.” The Act defines “operational control” as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.” In short, the Act, an obscure piece of performative trivia passed in the Bush administration, required that the Secretary act immediately to achieve the impossible – complete prevention of “all” illegal crossings of the U.S. border by persons or contraband. Unsurprisingly, this miracle has not yet been achieved by any administration, Republican or Democrat.
Nonetheless, Roy asked Secretary Mayorkas whether “operational control” of the border had been achieved. The Secretary imprudently said yes. Whereupon, the congressman triumphantly confronted the Secretary with a poster containing the statutory definition of this unattainable state. The Secretary mildly responded that he thought his predecessor in the Trump administration would have given the same answer. No one was in the slightest bit deceived by this bit of theatrics. As the basis for impeachment, it is comical.
Perhaps recognizing the silliness of Fallon’s approach, the Heritage brief contends that on various occasions Secretary Mayorkas has falsely said that the southern border is “secure.” That is surely a debatable assertion, maybe even an imprudently optimistic one. But anyone hearing it recognizes that it is not a categorical assertion of perfect border impermeability, but rather a claim of relative success in addressing an intractable problem. No one has been or will be deceived by the Secretary’s statements about border security.
There is No Case for Impeaching Secretary Mayorkas
All the arguments for impeaching Secretary Mayorkas boil down to expressions of disapproval of the Biden administration’s relaxation of Trump-era immigration policies. If one believes that both legal and illegal immigration are bad for the country and ought to be dramatically constrained, then one can fairly oppose Biden’s policy choices. But, at least if one seeks to remain true to established constitutional law and precedent, that opposition cannot be tortured into a case for impeaching Secretary Mayorkas.