LDAD Calls on Congress to Cease its Unconstitutional Use of the Impeachment Power

June 28, 2021

Jan 29, 2024

Editorial credit: Lev Radin

We, the undersigned, are committed to the United States Constitution, responsible governance, and the rule of law. The current effort to impeach Department of Homeland Security Secretary Alejandro Mayorkas is contrary to foundational principles of constitutional democracy that help ensure American freedom. 

Disagreements have been reported for some time between some members of the House of Representatives and Secretary Mayorkas over his management of immigration at our southern border. In response to these disagreements, Speaker of the House Mike Johnson has announced that he anticipates a House vote on articles of impeachment against Secretary Mayorkas “as soon as possible.”  

Such a move is worse than a political stunt. It would be both unconstitutional and anti-constitutional.  

The effect of threats to impeach cabinet secretaries from an opposing party because of policy disagreements brings us to a dangerous place in our constitutional order. If impeachment is allowed to be weaponized as a political instrument, the disturbing result would be to help enable authoritarianism in future presidents, and prevent presidents who adhere to the Constitution from functioning. 

There are three key elements.

First, the Constitution requires proof of “Treason, Bribery, or other High Crimes and Misdemeanors” to impeach a government official. Constitutional scholar Charles L. Black, Jr. wrote in his widely acclaimed, Impeachment: A Handbook, that the “one and only discussion” of the phrase, “high Crimes and Misdemeanors,” at the Constitutional Convention “quite definitely establishes that ‘maladministration’ was distinctly rejected as a ground for impeachment.” 

As 25 constitutional law experts wrote to Speaker Johnson on January 10:

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 [the] House … appear[s] poised to undertake. The charges they have publicly described come nowhere close to meeting the constitutional threshold for impeachment.

Also on January 10, University of Missouri Law Professor Frank O. Bowman III, an impeachment expert, told the Homeland Security Committee: “Based on all the information available to me, I have not found any indication that he has committed high crimes and misdemeanors.” 

Second, in the absence of a legal or factual basis for impeaching Secretary Mayorkas, it is difficult to rebut the criticism that the motivation is purely partisan and intended to amplify the border issue to advance party power.

Corrupting the impeachment process has dangerous anti-constitutional implications. If ordinary citizens begin to regard allegations of impeachable offenses as just one more political maneuver, the institution would be drained of meaning as a constitutional guardrail. Should a president be elected who seeks to abuse his office, that constraint would be useless because citizens would no longer trust that impeachment is anything more than a manipulative tool of one side to gain power over the other. 

Impeachment was designed by the framers as an institution to ensure that no one, not even a president, is above the law. But the House has put us on the road to eviscerating that first principle of the republic. 

Third, a goverment based upon the rule of law depends on the accountability of elected officials. Using impeachment to blame others for legislators’ own failings undermines constitutional government. That is what is happening here.

The absence of a willing Congress over the past several decades to address the realities underlying the border problem has created the situation in which Secretary Mayorkas operates. 

The allegations against the Secretary are contrary to the evidence. As reported in the Houston Chronicle, “Mayorkas has overseen a record number of removals [...] including more than 470,000 since May. . . .” 

In November, the non-partisan but libertarian-leaning Cato Institute analyzed the government data and concluded: "Migrants were more likely to be released after a border arrest" under the prior Administration than under Secretary Mayorkas' Administration, and that, “In absolute terms,” the current DHS “is removing 3.5 times as many people per month” as the prior Administration's DHS did. 

Further, the allegations against the Secretary belie the complexity of immigration laws and policies that have developed over a lengthy period of time. Secretary Mayorkas understands that the immigration challenge has far larger causes than can be addressed by the tools that Congress has provided the executive branch. In an October 30 Washington Post opinion piece, he wrote:

[E]conomic, political and climate instability exacerbated in the aftermath of the covid-19 pandemic is fueling the greatest level of global migration since World War II, particularly in our hemisphere. 

The Secretary then described the comprehensive approach the Administration has taken within the current framework of laws and resources that Congress has provided, and then spoke truth to legislative power: “Only Congress can bring our immigration and border security systems into the 21st century.” 

It’s easier to make political hay out of problems than to try to solve them. But a rule-of-law society requires elected officials to do the jobs for which they were elected, as defined by the Constitution. 

Rather than abusing its impeachment power, a responsible Congress concerned about America’s future should address the full range of immigration issues through its legislative powers. 

We call upon our representatives to cease their misguided focus on impeachment. We also call upon them to fulfill their obligations to the American people and ensure the future of a government of laws.





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