By Steven G. 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:
- He’s violated his oath of office by repeatedly contravening the laws he’s sworn to enforce.
- He’s abused the powers of his office through policies that threaten the sovereignty of the United States and put at risk the safety and security of the American people.
- And he’s betrayed the public trust by making false statements to Congress and deliberately misleading the public about the nature and effects of his policies.
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.
*Steven G. Bradbury is a distinguished fellow in the executive vice president’s office at The Heritage Foundation.
This article is part of an agreement between El American and The Heritage Foundation.