The Full Saga of the Mayorkas Impeachment

Elections & Politics Policy Brief #128 | By: Arvind Salem | April 23, 2024

Featured Photo: www.thehill.com

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On April 17th, 2024, the historic impeachment trial of Secretary of Homeland Security Alejandro Mayorkas, the first time in nearly 150 years that a Cabinet secretary was impeached,  came to a quiet end. After a protracted political fight, resulting in impeachment in the House, the Senate dismissed the Articles of Impeachment without holding a trial.

In February, the House impeached Mayorkas after a nearly year-long impeachment inquiry. The inquiry resulted in House Republicans impeaching Mayorkas on two articles of impeachment: willfully ignoring the law and breaching the public’s trust. The House alleged that Mayorkas willfully ignored the law by not complying with immigration law, citing a decision to release migrants after they arrived at the southern border. This technically violates a law that requires the detention of all migrants entering the country; however, no administration in the history of the country has detained all migrants that entered the country because it is extremely hard to catch all migrants crossing the border and the United States does not have sufficient space to detain people as they await immigration hearings. The House also said that Mayorkas breached the public trust by lying to Congress when he testified that the border was “secure”. This technically does not meet the definition of Secure under the Secure Fence Act, which says the standard for security is met when not a single person or good wrongly crosses the border.

After Mayorkas was impeached in the House, the matter of deciding whether he would be removed from office was the responsibility of the Senate. Very few would expect the Democrat-controlled Senate to actually convict Mayorkas. However, the Senate took the extra step of dismissing the articles of impeachment without actually going through with the trial, arguing that the impeachment was unconstitutional. Their argument rested on the fact that this impeachment effort was motivated by policy disagreements with the Biden administration’s border policy and not because Mayorkas’s actions met the Constitutional standard of “high crime or misdemeanor” that would merit impeachment. In party-line votes of  51-48 and 51-49 for the first and second articles respectively, with Senator Murkowski voting “present” for the first vote, the Senate dismissed both impeachment articles.

Republicans were incensed that the Senate did not even bring the impeachment to a trial, arguing that this creates the dangerous precedent that the Senate can simply disregard their constitutional duty to try impeachments: with Senate Minority Leader Mitch McConnell (R-KY) calling this a “very unfortunate precedent” and observing that “this is a day that’s not a proud day in the history of the Senate.”  Of course, McConnell did not bother to address the apparent contradiction of his current position to his position in 2021, when he voted in favor of the unsuccessful Republican effort to dismiss President Trump’s impeachment in 2021. For his part, Majority Leader Charles E. Schumer (D-N.Y.) responded that the Senate was obligated to set the precedent that impeachment should not be used to resolve policy disagreements, and should be reserved for more serious matters.

Policy Analysis:

Although Republicans lost this battle, the outcome of the war is yet to be determined. With a Democratic majority, there is no way that Republicans expected to reach the 67 votes needed to actually remove Mayorkas from office, especially after they barely united their fractured House caucus to adopt the articles of impeachment (they passed by a 214-213 vote). It is much more likely that this was a political calculation to hit an issue area that is weak for the Biden campaign ahead of the 2024 election, and attempting to put the very same immigration issue that catapulted Trump to victory back in the spotlight ahead of the election. This calculation is well-informed: Republicans are traditionally perceived as stronger on the border, with a September 2023 NBC News poll, finding that 50% of voters trust Republicans on the issue compared to just 20% trusting Democrats.

The Republican effort to put this issue at the top of the public mind also seems to be working, with a Wall Street Journal  poll just last month, in the midst of the Mayorkas impeachment, finding that immigration was either one of the top two issues on voters’ minds in seven important swing states, including Arizona, Pennsylvania, and Georgia. This inquiry-based approach to cast doubts on a President’s policy has worked in the past. Research from political scientists Douglas Kriner and Eric Schickler has found that if legislators spent 20 days per month on public policy investigative hearings, the president’s approval rating could drop by 2.5 percent. Senate Democrats have likely blunted much of the political impact of this impeachment by dismissing it so early, and in doing so, may have saved the election, while Trump is mired in his legal scandals.

However, broadly, the devolution of impeachment into a politically-motivated procedure used to win an election is a deeply disturbing development. Once a serious seldom-used procedure, it has become more and more common: morphing into a somewhat routine procedure that has lost its former weight. In this situation, it was Republicans abusing the system, but there have likely been offenses by both sides to devalue impeachment, a process central to the structural integrity of our democracy.

Engagement Resources

• Joe Biden for President, Those who agree with the Biden immigration policies that Mayorkas carried out and want to ensure his election, may wish to contribute to his campaign for President.
• FAIR, FAIR, the Federation for American Immigration Reform, is a nonpartisan, public-interest organization that seeks to evaluate policies and develop solutions to reduce the impact of excessive immigration on all facets of the nation including security, the economy, and healthcare. Readers who are interested in immigration policy and want to hear policy-based solutions to the immigration crisis may be interested in this organization.
• American Immigration Council, The American Immigration Council works to ensure due process for all immigrants by increasing access to legal counsel for immigrants and using the legal system to ensure fair treatment for immigrants.  Readers who are worried about the effects of the political momentum to tighten the border on more vulnerable immigrants may  be interested in this organization.
• GDAMS 2024 Statement · War Costs Us The Earth

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