Top House Republicans Rip Mayorkas

A thinly veiled threat to the secretary to do his job, or face the consequences

By Andrew R. Arthur on April 28, 2022

On April 25, 133 House Republicans — including Minority Leader Kevin McCarthy, Republican Whip Steve Scalise, House Republican Conference Chair Elise Stefanik, and conference Vice Chairman Mike Johnson — sent a letter to DHS Secretary Alejandro Mayorkas ripping his handling of the Southwest border. It is a preview of what the secretary could expect next year, assuming he sticks around.

The Role of the House Majority. McCarthy, Scalise, Stefanik, and Johnson are at the top of House leadership, and if the GOP wins control of the House in the November midterm elections (and the signs are in the party’s favor, according to both liberal and conservative pundits), each is in line for a promotion, most significantly McCarthy to speaker of the House and Scalise to majority leader.

The speaker sets the agenda for the House, meaning that he or she gets to decide which bills will be considered. Control of the House also means that the majority party picks committee chairs, and those chairs, in turn, have the authority to issue subpoenas to executive-branch agencies seeking testimony, documents, and other information.

Committee chairs also get to call hearings, to which they can invite executive branch officials. Mayorkas has appeared before the House and Senate a few times in the current 117th Congress, but if the GOP gains control of either chamber in the next, 118th, Congress, his dance card in 2023 will be plenty full.

Though most Americans consider Congress to be exclusively a law-making institution (in no small part thanks to Schoolhouse Rock), oversight of the activities and policies of the executive branch is a key congressional responsibility. I served as both a legislative and an oversight counsel on the Hill, and I can assure you, the latter is much more fun.

Congress also controls executive-branch funding, the potent “power of the purse”. And because under the Constitution “all bills for raising revenues [must] originate in the House”, the lower chamber gets first say on that funding. That means that the House can starve administration programs it doesn’t like, and feed ones that it does (as James Madison stated more eloquently in Federalist No. 58).

Finally, under the Constitution, the House has exclusive power to impeach an official. The Senate holds the impeachment trial and can order the removal of an impeached official from office (and disqualify him or her from serving again), but the impeachment charges themselves must be agreed upon in the House, putting the speaker in the driver’s seat of the process.

“Actions to Dismantle the Security of Our Nation’s Southern Border”. The letter begins pleasantly enough (“Dear Secretary Mayorkas”), but from what I would presume is the secretary’s perspective, goes downhill pretty quickly from there.

Not pulling any punches, the first line states: “We write to address your actions to dismantle the security of our nation’s southern border and disregard for the enforcement of U.S. immigration laws.” That tells you where this is headed.

Making points that both the Center and I have argued at length in the past, that letter continues: “Your actions have willingly endangered American citizens and undermined the rule of law and our nation’s sovereignty.”

The letter never uses the word “impeachment”, but it gets close when the members bluntly state: “Your failure to secure the border and enforce the laws passed by Congress raises grave questions about your suitability for office.” (Emphasis added.)

They then proceed to lay out just a few of their grievances with Mayorkas’ performance as DHS secretary.

Remain in Mexico. Their first complaint has to do with what the secretary has and has not done with respect to the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

Specifically, they argue that Mayorkas’ “expedited and repeated rejection of President Trump’s” MPP program demonstrates his “willingness to embrace an open-borders agenda that undermines America’s safety”.

Again, I have made these points in the past, which is likely why I am cited in footnote four of that letter. The members take Mayorkas to task not only for rescinding MPP (which even DHS concluded was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”), but also for his methods of rescinding it.

Even though the states of Texas and Missouri had sued the Biden administration in federal court (in a case captioned Texas v. Biden, filed in April 2021) in response to the Biden administration’s then-suspension of Remain in Mexico, they complain, Mayorkas attempted to rescind the program in June 2021.

They next note that despite a Supreme Court August 2021 order refusing to stay a district court injunction of Mayorkas’ attempted June recission of MPP, the secretary turned around and tried to rescind it again three months later.

Even though he did (grudgingly) restart MPP “on paper”, they assert, Mayorkas has failed to “administer[] the program in good faith, as required by” the district court's order in Texas.

Consequently, the members charge, Mayorkas’ “attempts to unilaterally reverse policy in ways a federal court has repeatedly found” are “in violation of the Administrative Procedure Act as well as” section 235 of the Immigration and Nationality Act “shows a willful disregard for the law and the separation of powers”. That’s a serious charge when directed against any government employee, let alone a cabinet official.

The members’ MPP gripes don’t stop there, however, as they argue that Mayorkas’ “callous disregard for the judiciary and willful refusal to properly apply the law raises questions about [his] commitment to protecting the homeland”. That’s a serious charge when directed against the secretary of Homeland Security.

The Wall. The letter then turns to the secretary’s actions and inactions as relate to what is popularly known “the wall”, or as they more aptly describe it “physical barriers along the southern border”.

The members complain that despite “an ongoing, unprecedented border crisis”, Mayorkas has “willfully ignored laws passed by Congress requiring the construction of” such barriers and has “unilaterally terminated existing contracts for the construction of” those barriers in lieu of “faithfully executing the law”.

Tying these points together, the members argue that Mayorkas’ actions and inactions on border barrier construction have “compromised the security of our nation and endangered American citizens” and have “also wasted billions in taxpayer dollars” — all points my recent reporting about the “Yuma Gap” in western Arizona make clear.

Summing up their border barrier points with a sledgehammer, the members charge that it is not within Mayorkas’ power “to simply decide the power of the purse now belongs to the Secretary of Homeland Security” given Congress’ authorization and appropriation of “funds to secure the southern border”.

The Post-Title 42 Border. Next, the letter turns to the prospect of even greater chaos at the Southwest border when CDC orders issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, which direct the immediate expulsion of illegal migrants, are lifted. That’s supposed to occur on May 23, but a federal judge is currently blocking the end of Title 42.

The members complain that the end of Title 42 “will bring a tidal wave of illegal immigrants across our southern border and overwhelm the already overworked and understaffed agents of the U.S. Border Patrol”. That, they assert, will allow “well-resourced cartels, gang members, human traffickers, and drug smugglers” to “exploit this crisis to further endanger American citizens”.

Each of those points is undeniably true. More than 100,000 Americans died of drug overdoses in 2021, primarily due to fentanyl, an incredibly potent and dangerous drug that in most cases enters the United States illegally over the border from Mexico.

More than half of all Border Patrol agents in certain sectors are already “off the line” processing and caring for migrants, and my sources tell me that once Title 42 ends, just 10 percent of agents will be left to stop the cartels, drug smugglers, traffickers, and “high-profile” migrants (criminals, terrorists, and their ilk) who will seek to evade apprehension.

And though Mayorkas asserts he has a plan to deal with this miasma, as my colleague Jon Feere made clear, that plan will simply make the catastrophe at the border worse.

Questions. The members then direct three separate questions to the secretary to put Mayorkas on the record with respect to key flaws in the Biden administration’s immigration agenda. That said, though they are phrased as questions, only the tone-deaf would mistake the fact that they are actually congressional marching orders from the folks who may soon be in charge.

The first relates to the congressional mandate in section 235(b) of the INA requiring DHS to detain arriving aliens, including illegal migrants. The members ask Mayorkas whether he recognizes that mandate, and if so, under what authority he “believes” he can release those migrants.

I can answer that one: DHS’s authority to release illegal migrants on parole is extremely limited (a key issue in Texas), and aside from that, the department has no authority to release them.

Despite that, more than 836,000 illegal migrants have been released into the United States under the Biden administration.

Question number two relates to what heretofore has been my almost exclusive policy hobbyhorse, section 2(a) of the Secure Fence Act of 2006. On April 8, I termed it “the Most Important Border Law”, because it requires the secretary of DHS to “achieve operational control on the border”.

Operational control is defined in section 2(b) of that act as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband”. (Emphasis added.)

The members direct the secretary to explain “how [he] is in compliance with section 2(a)”. Good luck answering that one, given that, as noted, DHS has released more than 836,000 illegal migrants into the United States under the Biden administration.

Lastly, the letter directs the secretary to state how much it has cost DHS “to cancel, pause, or otherwise halt construction of physical barriers along the southern border authorized and appropriated by law”.

My colleague Rob Law has explained that taxpayers have had to foot about $2 billion in costs due to the Biden administration’s failure to build the wall. That’s based on a report issued by Republicans on the Senate Subcommittee on Government Operations and Border Management, but to date I am unaware of an official executive-branch analysis that provides the real cost.

It is high time that one was issued, and kudos to the 133 members of Congress for putting the secretary on the spot to provide it. Regardless of what one may or may not think about border barriers, there is no reason for tax dollars to be spent not to build them.

Where It Goes from Here. The standards for impeachment of a government official are high. Article II, section 4 of the U.S. Constitution states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Does that include nonfeasance, violation of oaths of office, or failure to comply with congressional mandates? Good question. The House is the prosecutor, and the Senate is the jury. There is no appeal, and so their verdict is final.

That said, many congressional Republicans are likely tired of the theatrics that have played out during impeachment proceedings in the last administration and may want a clean break and to set a new tone. Again, the word “impeachment” does not appear in the letter, but then, there may have been no need.

None of this should be necessary, and 133 members of Congress should not have to send a thinly veiled threat to the secretary of Homeland Security to force him to do his primary job — protecting the homeland from terrorists, drugs, and crime. Nor should they be required to force him to comply with the strict limits that Congress has set on immigration to the United States. The immigration system is not “broken”, as Mayorkas has contended. The immigration laws just aren’t being enforced. It is time for the secretary to start enforcing them.