Update on Dueling Border-Security Votes in the House and Senate

There’s been a lot of congressional action — but not much movement — on border security in Congress this week. Here’s a quick rehash for those keeping score at home.

Mayorkas Impeachment. On Tuesday, the House considered H. Res. 863, “Impeaching Alejandro Nicholas Mayorkas, Secretary of Homeland Security, for high crimes and misdemeanors”, which was reported out of the House Homeland Security Committee and sent to the floor on February 3.

The articles of impeachment charge the DHS secretary with “willful and systematic refusal to comply” with the Immigration and Nationality Act (INA) and other immigration-related laws, primarily his failure to comply with detention mandates for illegal migrants; and “breach of public trust” for certain questionable immigration-related statements he made before Congress, as well as for “avoiding lawful oversight in order to obscure the devastating consequences of his willful and systemic refusal to comply with the law and carry out his statutory duties”, and “willfully refusing to carry out his statutory duty to control the border and guard against illegal entry, notwithstanding the calamitous consequences of his abdication of that duty”.

That resolution, which required a majority for passage, failed to pass the House on February 6 with a vote of 216 “nays” and 214 “yeas”.

All 212 Democratic representatives voted against passage, as did four Republicans: Reps. Ken Buck (Colo.), Mike Gallagher (Wisc.), Tom McClintock (Calif.), and Blake Moore (Utah).

Rep. Steve Scalise (La.), House majority leader, did not vote, as he has been absent from the chamber while receiving cancer treatment. Rep. Al Green (D-Texas) cast a surprise vote against impeachment; he is also undergoing medical care, and as BBC reported, the congressman “entered the chamber in a wheelchair while wearing hospital scrubs”.

As I recently explained, the House is going the impeachment route because the Supreme Court has blocked state efforts to force Mayorkas to comply with congressional immigration mandates through litigation.

That leaves GOP opponents of the president’s border policies two choices: a government shutdown or impeaching the secretary, and the House Republican conference has chosen the latter.

For his part, Buck penned an op-ed in The Hill on Monday in which he explained:

To be clear, Secretary Mayorkas has completely failed at his job. He is incompetent. He is an embarrassment. And he will most likely be remembered as the worst secretary of Homeland Security in the history of the United States.

However, the Constitution is clear that impeachment is reserved for “Treason, Bribery, or other high Crimes and Misdemeanors.” Maladministration or incompetence does not rise to what our founders considered an impeachable offense.

Partisan impeachments that do not meet the constitutional standard will boomerang back and hurt Republicans in the future. I can envision a future Republican administration where a Democrat-led House uses this precedent to act against a Republican Cabinet member who isn’t discharging their duties in a way that Democrats desire. [Emphasis in original.]

Not exactly a ringing endorsement of the secretary, but you know where he stands. McClintock sent a letter to his GOP colleagues on Tuesday making similar points about the deleterious effects of the administration’s policies, but concluding that the House articles “fail to identify an impeachable crime that Mayorkas has committed”.

As for Gallagher, NBC News reports that he “was among several Republicans who had expressed skepticism about the impeachment vote during a closed-door meeting Tuesday morning”. The outlet continues: “Impeaching Mayorkas would ‘open Pandora’s box’, Gallagher warned his colleagues.”

That leaves Moore, who replaced current Speaker Mike Johnson (R-La.) as vice chair of the House Republican Conference in November, and thus serves in GOP leadership. There was both more and less to his nay than meets the eye.

Moore had initially voted in favor of impeaching Mayorkas, but then changed his vote when the resolution appeared headed to a tie, which would have spelled defeat. Under House rules, a member on the winning side of a floor vote can then bring a motion to reconsider the matter, and in fact Moore made such a motion after the votes were tallied.

The chair then concluded that the motion to reconsider had prevailed based on the voice votes of the members in the chamber (basically a lot of shouting), and so Moore called for a formal vote on the yeas and nays. That vote was postponed — likely until Scalise can return and vote in favor, which would allow Moore to switch his vote, ensuring passage assuming that no other Republicans in favor switch theirs.

The whole affair was a black eye for House Republicans, to be sure, but not necessarily fatal to their attempt to impeach Mayorkas — yet.

The Senate Border Bill. On Sunday night, Senate negotiators published their amendment in the nature of a substitute to H.R. 815, the ‘‘Emergency National Security Supplemental Appropriations Act, 2024’’, likely better known as the “Senate border bill”.

That proposal was hashed out over a period of about two months by three senators, James Lankford (R-Okla.), Chris Murphy (D-Conn.), and Kyrsten Sinema (I-Ariz.). As Sinema was elected as a Democrat and still caucuses with the party, that may seem to be a bit imbalanced, but they do control the Senate with a one-seat majority.

Take a look at the amendment, however, and you will see plenty of other fingerprints on it, including those of DHS and its embattled secretary. My colleague Mark Krikorian noted the “irony” in this effort on Tuesday in advance of the impeachment vote:

As early as this week, the full House of Representatives could vote to impeach DHS Secretary Alejandro Mayorkas for disobeying the law, abuse of power, and dereliction of duty. But at the same time — possibly even on the same day — the Senate could vote on a measure crafted in part by that same cabinet member to “solve” the crisis caused by his own disobeying the law, abuse of power, and dereliction of duty.

The whole idea behind that scheme was to trade $61 billion in war funding for Ukraine (which the White House and congressional Democrats — by and large — demand) for border security reforms, which as the Mayorkas impeachment effort described above reveals, Republicans are clamoring for.

The Center has already provided in-depth analyses of parts of this needlessly complex and wholly convoluted 370-page amendment, but simply put, the bill fails to close the vast majority of loopholes smugglers have been exploiting for a decade to move illegal migrants (and migrant families and children, in particular) into the United States. Worse, it codifies some of them.

You don’t have to trust me on any of this, but consider the following from my erstwhile Democratic colleague on the House Judiciary Committee, Nolan Rappaport:

The Border Act would not secure the border. Among other weaknesses, it fails to provide a solution to the most serious problem, which is that Biden has released so many asylum seekers into the country that our asylum system has broken.

The flaws in this Senate amendment are so patent that opposition to it didn’t require — or wait for — the sober and detailed assessments of think-tank experts. Rather, just check X (previously Twitter) and you will see that a few thousand people taking screenshots of the language itself were enough to scuttle it.

The amendment went to a cloture vote in the Senate on Wednesday, which would have required 60 senators to agree to begin debating the measure, and it outright failed to even pick up a majority, failing by a vote of 50 nays to 49 yeas (Sen. Cynthia Lummis (R-Wyo.) didn’t vote).

It was largely a party-line vote, but not entirely. GOP Sens. Mitt Romney (Utah), Lisa Murkowski (Alaska), Susan Collins (Maine), and not surprisingly Lankford himself all voted in favor of beginning debate, while Democratic Sens. Ed Markey (Mass.), Elizabeth Warren (Mass.), and Alex Padilla (Calif.) all joined the remaining Republicans in voting against it, as did Independent Sen. Bernie Sanders (Vt.) — who caucuses with the Democrats. Schumer also voted nay, again to have the chance to bring it up again.

Padilla, in particular, had voiced his concerns about the amendment in advance. He complained, among other things, that it didn’t provide amnesty (my word, not his) for aliens who came illegally as children or for farmworkers (a majority constituency in the Golden State). As he put it: “That’s not just a huge injustice, in my opinion, but a significant shift from prior negotiations.”

Notably, among those who voted against cloture were Senate Minority Leader Mitch McConnell (Ky.) and Sen. Thom Tillis (N.C.) — both Republicans and each an erstwhile supporter of the measure. McConnell’s deputy, Minority Whip John Thune (R-N.D.) forecast on Tuesday that most Republicans were “unlikely” to vote for cloture, asserting that they “want more time to evaluate” that amendment.

Given that Speaker Johnson had already termed the Senate amendment “dead on arrival” in the House shortly after the text was released under cover of darkness on Sunday night, even if the Senate were to begin debating and somehow passed the measure, it likely wouldn’t go far.

That leaves the Ukraine funding in limbo, and apparently Senate Majority Leader Chuck Schumer (D-N.Y.) is considering a “Plan B” to pass it as a separate measure. He has support from an unlikely corner, with recently elected Polish Prime Minister Donald Tusk tweeting:

The Political Popularity of Border Insecurity. It may not make sense to the majority of American voters who oppose what’s happening at the border and the impacts the insecurity there are having on municipal budgets across the United States, but the failure of Congress to reach consensus on these issues actually makes some sort of strange sense.

Polling repeatedly reveals a divide between Democratic voters on the one hand and Independents and Republicans on the other when it comes to the job Joe Biden is doing when it comes to immigration and the border.

For example, 61 percent of registered voters in the latest NPR/PBS NewsHour/Marist poll of 1,582 U.S. adults, conducted between January 29 and February 1, disapprove of how the president is handling immigration, while just 29 percent approve. That includes 90 percent of Republicans and 66 percent of registered Independents.

Those numbers are nearly flipped, however, when it comes to Democratic voters, 55 percent of whom approve of what Biden’s doing when it comes to the issue and just 30 percent of whom disapprove.

Even “Latino” respondents in that poll — by a 30-point, 57 percent to 27 percent margin — overwhelming disapprove of Biden’s immigration performance, as do college graduates (37 percent approval vs. 55 percent disapproval).

Curiously, the youngest voters — those aged 18 to 29 — are the least likely to be happy with what Biden is doing when it comes to immigration (just 23 percent of them approve); by contrast, 26 percent of those aged 30 to 44, 30 percent of the 45- to 59-year-old cohort, and 33 percent of those aged 60 and older approve. Of course, the newest members of the electorate are also the most likely not to have an opinion (23 percent).

None of that, however, diminishes the popularity of Biden’s immigration policies among Democratic voters, and this being a Republic in an election year, those voters’ elected representatives are simply voicing their collective will.

Republicans, of course, are being blamed both for their failure to impeach Mayorkas and for their refusal to line up behind the bill Mayorkas helped the Senate craft, but journalists are also 10-plus times more likely to identify as Democrats (36.4 percent) than Republicans (3.4 percent).

That, coupled with the findings of a 2022 Pew Research poll in which 55 percent of journalists responded that “every side does not always deserve equal coverage”, likely accounts for this inconsistency in reporting on an issue Democrats are out of step with their fellow Americans over.

Long story short, we likely haven’t seen the last of GOP efforts to impeach DHS Secretary Alejandro Mayorkas, but we probably won’t see passage of the Senate border bill, regardless of what Ronald Reagan — as channeled by the Polish prime minister — may want. As the late Rep. Sonny Bono (R-Calif.) once explained, “and the beat goes on” — even if it’s only Democrats who like the tune.