A growing number of conservative voices are encouraging House Republicans to drop their campaign to impeach Homeland Security Secretary Alejandro Mayorkas, arguing the GOP has not met the constitutional bar for removing him from office.
Articles of impeachment for Mayorkas accuse him of violating immigration laws that require the detention of all migrants — something no administration has ever done — as well as a “breach of public trust.”
But notable conservatives have said those arguments fall far short of the high crimes and misdemeanors standard set out in the constitution.
Alan Dershowitz, who represented former President Trump in his first impeachment trial, accused House Republicans on Tuesday of using “double standards” in backing “vague” charges against Mayorkas when they refused to do so for the former president. Any backers, he said, are “distorting the Constitution.”
Legal expert and regular GOP witness Jonathan Turley said they had no “cognizable basis” for impeachment, while Michael Chertoff, a Republican who led the Department of Homeland Security (DHS) under former President George W. Bush, wrote in an op-ed that House Republicans have “failed to put forth evidence that meets the bar.”
The conservative-leaning Wall Street Journal editorial board dropped a critical take amid the House Homeland Security Committee’s marathon markup of the articles, writing that a Mayorkas impeachment “achieves nothing” while backing a key Democratic argument in calling the matter a policy dispute.
Dershowitz was one of the most critical of the House GOP articles, saying it would be hypocritical to support a Mayorkas impeachment when lawmakers rejected arguments for Trump that the attorney pegged as not fitting the standard of high crimes and misdemeanors.
“Many of the same Republicans are seeking to impeach Secretary of Homeland Security Alejandro Mayorkas on equally vague and unconstitutional grounds. Whatever else Mayorkas may or may not have done, he has not committed bribery, treason, or high crimes and misdemeanors. Indeed, most Republicans do not even claim that his actions or inactions meet these daunting constitutional standards, but they are prepared to apply a double standard based on partisan considerations,” Dershowitz wrote in an op-ed in The Hill that was published during the House panel’s markup of impeachment articles.
“The extraordinary power of impeachment should be reserved for constitutionally impeachable offences and not invoked simply because one party has the votes to do so.”
House Republicans have repeatedly justified what would be the second impeachment of a cabinet secretary, saying Mayorkas is not being violated for policy differences but because he has violated the law.
The Wall Street Journal op-ed, however, reads like a list of Republican losses in court, noting that many of the laws the GOP claims Mayorkas is violating, as well as Biden administration policies, were upheld under review.
“The first article cites Mr. Mayorkas for refusing to implement a law that requires detention of aliens. It says his policy of ‘catch and release’ is impeachable. Yet the Supreme Court has not ruled that the Biden policies are illegal,” the board wrote, noting the high court upheld DHS’s enforcement priorities that prioritize for detention those deemed a national security or public safety risk.
It also notes that U.S. law requires authorities to allow those who make it onto American soil to pursue asylum protections so long as they pass an initial screening — a process Congress would need to change.
“Article I also claims Mr. Mayorkas has violated the law by expanding humanitarian parole beyond Congress’s intent. That’s probably true, but the law puts no cap on parole numbers. Texas and other states challenged the President’s authority to use parole for large classes of migrants, but the Supreme Court ruled against them,” the board wrote.
“House Republicans dislike how the Administration is interpreting immigration law. But Congress has failed to reform asylum standards or humanitarian parole, or to otherwise tighten immigration rules.”
Turley, in an earlier op-ed in The Daily Beast, also blasted Republicans for seeking to boot Mayorkas over policies they argue subvert immigration laws.
“The courts have long recognized that presidents are allowed to establish priorities in the enforcement of federal laws, even when those priorities tend to lower enforcement for certain groups or areas. It is a matter of discretion,” he wrote.
“In my view, Biden has been dead wrong on immigration, but voters will soon have an opportunity to render a judgment on those policies in the election. Mayorkas has carried out those policies. What has not been shown is conduct by the secretary that could be viewed as criminal or impeachable.”
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The House Homeland Security Committee approved articles of impeachment for Mayorkas in the early hours of Wednesday morning after its marathon Tuesday markup stretched into the next day.
Speaker Mike Johnson (R-La.) has pledged to bring it to the full House “as soon as possible.”
The Wall Street Journal said the vote “accomplishes nothing beyond political symbolism” as it will be buried by the Democrat-led Senate, saying it “would be the political equivalent of a no-confidence vote. This would continue Congress’s recent trend of defining impeachment down.”
Dershowitz called on Republicans to back the constitutional principles they often claim to hold.
“The time has come, indeed it is overdue, for members of Congress who claim to be originalists when it comes to constitutional interpretation to recognize that the Framers explicitly refused to allow impeachment and removal for ‘maladministration’ or other such vague abuses of duty,” he wrote.
“It is the voters who are allocated the power to vote against those who fail at governance.”