Joined by an extraordinary group of constitutional experts, we have published an open letter concerning the impeachment proceedings against Secretary of Homeland Security Alejandro Mayorkas. The letter can be found here. In addition, the full text follows below.

January 10, 2024

Speaker Mike Johnson
The Capitol
Washington, D.C. 20515

Chairman Mark Green
2446 Rayburn House Office Building
Washington, DC 20515

Constitutional Law Experts on the Impeachment Proceedings
Against Secretary of Homeland Security Alejandro Mayorkas

Senior Republicans in the House of Representatives—including Speaker of the House Mike Johnson and Chairman Mark Green of the Committee on Homeland Security—have stated that they intend to pursue an impeachment of Homeland Security Secretary Alejandro Mayorkas. This proceeding will apparently occur in the Committee on Homeland Security on an accelerated timeframe. As scholars of the Constitution, considering the facts currently known and the charges publicly described, we hereby express our view that an impeachment of Secretary Mayorkas would be utterly unjustified as a matter of constitutional law.

Although House Republicans have offered various justifications for an impeachment, the underlying basis appears to be their view that Secretary Mayorkas’s policy decisions have degraded border security and involved objectionable uses of enforcement discretion. House Republicans have also publicly asserted that Secretary Mayorkas testified falsely in stating that he is enforcing existing federal law and that the southern border is closed and secure.

When the Framers designed the Constitution’s impeachment provisions, they made a conscious choice not to allow impeachment for mere “maladministration”—in other words, for incompetence, poor judgment, or bad policy. Instead, they provided that impeachment could be justified only by truly extraordinary misconduct: “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const., art. II, § 4. Thus, as Charles L. Black, Jr. noted in his influential handbook, impeachment is not permitted for “mere inefficient administration, or administration that [does] not accord with Congress’s view of good policy.” Simply put, the Constitution forbids impeachment based on policy disagreements between the House and the Executive Branch, no matter how intense or high stakes those differences of opinion.

Yet that is exactly what House Republicans appear poised to undertake. The charges they have publicly described come nowhere close to meeting the constitutional threshold for impeachment. Their proposed grounds for impeaching Secretary Mayorkas are the stuff of ordinary (albeit impassioned) policy disagreement in the field of immigration enforcement. If allegations like this were sufficient to justify impeachment, the separation of powers would be permanently destabilized. It is telling that there is absolutely no historical precedent for the impeachment charges that House Republicans have articulated. To the contrary, on the rare occasions that Members of the House have proposed impeaching executive officials for their handling of immigration matters, the House has properly retreated from that grave step.

We hold a wide range of views on the wisdom and success of Secretary Mayorkas’s approach to immigration policy. But we are in agreement that impeaching him based on the charges set forth by House Republicans would be a stark departure from the Constitution.

Of course, our institutional affiliations are listed for identification purposes only, and our signatures reflect our personal capacity, not any position on behalf of our employers.


Laurence H. Tribe
Carl M. Loeb University Professor, Emeritus
Harvard University

Joshua Matz
Partner | Kaplan Hecker & Fink LLP
Adjunct Professor of Law | Georgetown Law School

Donald Ayer
Adjunct Professor of Law
Georgetown Law School

Philip C. Bobbitt
Herbert Wechsler Professor of Federal Jurisprudence
Columbia Law School

Corey Brettschneider
Professor of Political Science
Brown University

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
Berkeley Law

Gabriel J. Chin
Edward L. Barrett Jr. Chair of Law
Martin Luther King Jr. Professor of Law
Director of Clinical Legal Education
UC Davis School of Law

Rosalind Dixon
Professor of Law
University of New South Wales

Michael Dorf
Robert S. Stevens Professor of Law
Cornell Law School

Amanda Frost
John A. Ewald Jr. Research Professor of Law
University of Virginia School of Law

Michael Gerhardt
Burton Craige Distinguished Professor of Jurisprudence
UNC School of Law

Stuart Gerson
Society for the Rule of Law

Aziz Huq
Frank and Bernice J. Greenberg Professor of Law
University of Chicago Law School

Kevin R. Johnson
Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies
UC Davis School of Law

Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School

Jon D. Michaels
Professor of Law
UCLA School of Law

Timothy Naftali
Senior Research Scholar
Columbia University School of International and Public Affairs

Victoria Nourse
Ralph V. Whitworth Professor in Law
Georgetown Law School

Deborah Pearlstein
Director, Princeton Program on Law and Public Policy
Charles and Marie Robertson Visiting Professor of Law and Public Affairs
Princeton University

Robert Post
Sterling Professor of Law
Yale Law School

Cristina Rodríguez
Leighton Homer Surbeck Professor of Law
Yale Law School

Jack Rakove
William Robertson Coe Professor of History and American Studies
Professor of Political Science, Emeritus
Stanford University

Kermit Roosevelt
David Berger Professor for the Administration of Justice
Penn Carey Law School

Peter Shane
Professor and Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus
The Ohio State University Moritz College of Law

David A. Strauss
Gerald Ratner Distinguished Service Professor of Law
Faculty Director, Supreme Court and Appellate Clinic
University of Chicago Law School