Sometime later this week, but likely tomorrow, the Republican impeachment crusade against Homeland Security Secretary Alejandro Mayorkas will die in the Senate. The charge against him will almost certainly be dispatched without a trial, rejected by a simple motion to dismiss and allowed to expire with a last feeble gasp, like a guppy thrown from its tank by a careless child.
The demise of the campaign against Mayorkas will, briefly, be attended by the outraged wails of a few Republican senators and the parade of far-right self-promoters.
The demise of the campaign against Mayorkas will, briefly, be attended by the outraged wails of a few Republican senators and the parade of far-right self-promoters appointed by the House caucus to prosecute the case as managers. All will pronounce themselves deeply saddened and gravely offended that Senate Democrats treated with such disrespect the House’s exercise of its solemn constitutional responsibility to exercise its “sole power of impeachment.”
But one cannot respect a congressional action if the action itself so clearly disrespects both the Constitution and the proper role of Congress within the constitutional structure.
The plain fact is that House Republicans are impeaching Mayorkas because he is the public face of Biden administration immigration policy with which Republicans disagree, and against which they and Donald Trump want to run in this fall’s election.
As I testified during the first Homeland Security Committee impeachment hearing against Mayorkas, at no point during the truncated impeachment process did the Republicans prove that he had committed any of the transgressions traditionally accepted as impeachable “high Crimes and Misdemeanors.” Republicans did not, because they could not, show that Mayorkas committed any crime (high or otherwise), acted corruptly, abused his power, betrayed the nation’s foreign policy interests or subverted the Constitution.
Republicans have repeatedly maintained that Mayorkas violated the law through his interpretation of immigration statutes. But as I and others have repeatedly demonstrated, that is not true. Republicans could not even show that the secretary has culpably neglected his duties in some way inasmuch as their true complaint is that he has been a diligent and effective executant of Biden administration policies they simply do not like.
But if there is one point on which 237 years of American precedent is clear, it is that neither presidents nor Cabinet members should be impeached over mere policy disagreements. That understanding persisted unchallenged until rejected by today’s Republicans because employing impeachment as an ordinary tool of political combat violates the basic constitutional principle of separation of powers.
And that is the most compelling reason for the Senate to give the Mayorkas impeachment no countenance whatsoever. If the Republican House majority wishes the Senate to respect its actions, it must respect the most basic principles governing its own constitutional role.
If there is one point on which 237 years of American precedent is clear, it is that neither presidents nor Cabinet members should be impeached over mere policy disagreements.
The primary job of Congress is to legislate. And by legislating to dictate both the general policy of the federal government and the permissible means of carrying out that policy. If Congress, or one chamber of it, disapproves of presidential policy or of the way a president’s administration is interpreting laws passed by prior Congresses, then its core constitutional responsibility is to legislate changes in policy. That, by constitutional design, requires entering into negotiations among the two parties, the two chambers and the president to produce mutually acceptable language that will then become law.
As is by now notorious, the Biden administration entered into such negotiations with a bipartisan team of senators and produced significant immigration legislation embodying multiple conservative priorities that, if introduced in both houses, would certainly have passed. But Trump ordered his acolytes to reject this beneficial, democratic, constitutional compromise. Republican senators cowered and backed away from their own accomplishment. And House Republicans refused even to consider the bill.
What House Republicans gave the Senate instead — and then only after two tries marked by rebellion within their own ranks — was the Mayorkas impeachment, a piece of performative trivia, constitutionally groundless and utterly unworthy of any respect whatsoever.
When the Senate unceremoniously dispatches the Mayorkas impeachment, it will not be disrespecting a solemn constitutional act by a serious legislative body. Rather, it will be doing the country a great service by reminding us that the powerful weapon of impeachment bestowed on Congress by the Constitution must be employed with respect and reserved for the great occasions and grave constitutional offenses for which it was designed.