National Review, June 5, 2023
The porous southern border is a catastrophe for the rule of law. Although Congress has legislated the types of immigrants the U.S. may admit and in what numbers, the Department of Homeland Security (DHS) under Secretary Alejandro Mayorkas has flouted those rules by welcoming millions of migrants without visas. The House should impeach him.
As I recently explained, Mayorkas is not merely being inattentive as migrants sneak across the border; rather, he is facilitating illegal immigration through, among other things, abuse of the parole power. Congress has specified that migrants may be paroled into the country “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” Mayorkas has pulled an elephant out of this statutory mouse hole, citing it to justify admission and work permits for however many migrants he wants, from whatever countries he wants, at whatever time he wants. As my colleague Todd Bensman has observed, the “administration has, out of thin air, created a parallel immigration system outside the authority of Congress and the American people.”
So why hasn’t Mayorkas been impeached already? A GOP congressman who supports impeachment tells me that his colleagues have concerns about both legality and usefulness. The legal concern is that Mayorkas does not stand accused of bribery, or theft, or some other unquestionably illegal behavior. Republicans merely dispute Mayorkas’s interpretation of the law, as this argument goes, so let the courts sort it out.
Legislatures should not be so passive. The Founders envisioned that all three branches would jealously guard their prerogatives. They did not want Congress to simply stand down after it puts pen to paper. If Congress concludes the administration is failing to execute the laws it has written, and if that failure is especially egregious or consequential, Congress should seek to remove the officers who are responsible. Maybe the judiciary will intervene as well, but for Congress to do nothing other than hope for a favorable court ruling is an abdication of its constitutional role.
The same response applies to a related legal objection, which is that past administrations have also abused parole. Yes, parole abuse has steadily expanded the executive branch’s power, to the point where today the DHS secretary brags about building “the largest expansion of lawful pathways ever.” Failure to object now will effectively ratify the power transfer.
Some House Republicans believe any impeachment would be useless, since the Senate would surely acquit, and the media would portray the whole process as partisan politics. On the contrary, a Senate trial is exactly what Republicans should want. It would force a detailed discussion of the administration’s failures at the border and its rewriting of the immigration laws. Senators who vote to acquit would have to go on the record supporting those policies.
Now, if Republicans impeached President Biden rather than Secretary Mayorkas over the border crisis, ordinary voters would have trouble distinguishing the impeachment from any other partisan battle. Democratic cries that Republicans are “attempting to overturn the last election” would drown out the substantive arguments. Limiting impeachment to Mayorkas will sharpen the focus on the legal issues. It’s time for the House to move against him.