Yes, Mayorkas Is in Fact Breaking the Law

The coming Mayorkas impeachment trial is a long-overdue rebuke of the Biden administration’s criminal abuse of federal immigration law, and a reassertion of Congress’s supremacy.

By Phillip Linderman on February 16, 2024

The American Conservative, February 16, 2024

Conservatives are rightfully celebrating the House’s Tuesday vote in favor of articles of impeachment against Secretary Alejandro Mayorkas. The coming trial of the scofflaw DHS secretary is far from a waste of time, even if the Democrat-controlled Senate is already looking to block it. It sends a message to frustrated Americans: This administration is breaking the law.

This constitutional and legal fight is an attempt to salvage what is left of the rule of law in immigration and border-security matters, instead of watching the country continue to descend into banana republic status. If some kind of trial or forced public examination of the border mess takes place in the Senate, the effort can provide a valuable national platform to document exactly how the Biden-appointed Mayorkas is uniquely responsible for the country’s unprecedented illegal immigration catastrophe.

The charges against Mayorkas are not simply a “policy dispute”; they directly address his abuse of federal immigration laws. When Colorado’s Congressman Ken Buck, one of three House Republicans to vote against impeachment, asserted that “poor job performance is not an impeachable offense,” he is confusing Mayorkas’s malfeasance with misfeasance.

The House charges document Mayorkas’s mens rea of wrongdoing and arrogance in ignoring federal law. They make a persuasive case that, from the very start of his tenure, Mayorkas has been engaged in calculated malfeasance (unlawful acts or intended omissions) to overturn the controlling federal law, the Immigration and Nationality Act (INA). The DHS secretary actions are much more than simple misfeasance (poor administration).

An experienced lawyer, Buck should know the difference. As Black’s Law Dictionary explains: “Malfeasance is a wrongful act which the actor has no legal right to do or any wrongful conduct which affects, interrupts or interferes with performance of official duty.” Malfeasance is more serious than misfeasance and in fact can constitute the crime or misdemeanor set down in the Constitution as the basis for an impeachment action.

The Immigration and Nationality Act (INA) states Secretary Mayorkas’s duty is “to control and guard the boundaries and borders of the United States against the illegal entry of aliens” (8 USC § 1103).

As a point of comparison, Mayorkas also has the duty to prohibit discrimination in DHS hiring based on race, color, religion, sex, or national origin (Title VII of the Civil Rights Act of 1964). If Mayorkas were flouting the anti-discrimination statutory duty, would Buck or the New York Times call it just a policy dispute?

The House prosecutors should concentrate on two of the main charges: the secretary’s plot to overturn the law’s requirement that all illegal aliens be detained and his abuse of parole authority to create unlawful mass immigration programs.

Start with Mayorkas’s detention malfeasance. From first taking his oath of office, the secretary willfully rejected and undermined the INA’s security mandates to detain persons who enter the country without legal authority. Mayorkas unlawfully ordered DHS personnel, most notably front-line law-enforcement officers in U.S. Customs and Border Protection and U.S. Border Patrol, not to detain and hold encountered illegal aliens.

Such an unlawful order does not constitute a “policy dispute,” but is a fundamental rejection of a basic statutory duty about which the statute authorizes the DHS secretary no discretion. Congress gave the secretary nothing remotely equivalent to a prosecutor’s judgment to bring or not bring charges in a criminal case. The DHS secretary has a constant and unqualified affirmative duty to ensure his officers are interdicting, detaining, and holding foreigners attempting illegal entry.

This detention requirement, most notably, also applies to those foreigners who claim asylum; such persons are to be held, not released, until their case is resolved. Under the INA, neither illegal migrants nor putative asylees are to be set loose into the United States.

The reasons why are self-evident, but Mayorkas has thrown this fundamental duty aside because of his own ideological beliefs about how to treat migrants. Mayorkas further calculated he could overwhelm his own agency’s capacity to manage these migrants by publicly encouraging millions to travel to U.S. frontiers.

The articles of impeachment recount the secretary’s intentional decision to sabotage President Trump’s highly successful “Remain in Mexico” policy (officially called “Migrant Protection Protocols”). What Buck and the “policy dispute” apologists overlook is that MPP was U.S. diplomacy based on an INA statutory requirement; it was not just a hard-nosed, common-sense Trump administration policy initiative.

Thus, the House’s first article of impeachment states:

Mayorkas willfully refused to comply with the detention mandate set forth in section 235(b)(2)(A) of the Immigration and Nationality Act, requiring that all applicants for admission who are not clearly and beyond a doubt entitled to be admitted shall be detained for a [removal] proceeding. Instead of complying with this requirement, Alejandro N. Mayorkas implemented a catch and release scheme, whereby such aliens are unlawfully released … .

The articles continue:

Mayorkas proceeded to abandon effective border security initiatives without engaging in adequate alternative efforts that would enable DHS to maintain control of the border and guard against illegal entry, and despite clear evidence of the devastating consequences of his actions, he failed to take action to fulfill his statutory duty to control the border.

The fact that previous administrations may also have engaged in releasing some illegal migrants does not minimize Mayorkas’s malfeasance on this crucial point, nor does it matter that there may have been inadequate detention space. From the very start, Mayorkas gave his order to overturn MPP and end detention so that he could substitute his own personal standard in place of the law.

A good prosecutor can bring these points out in a trial. Mayorkas’s substitution of his own concept of “migrant justice” was his overarching motivation to act, not the department’s lack of resources or any other kind of operational limitations.

The second major issue that a Senate trial will help bring to light is the secretary’s continuing abuse of “humanitarian” or “public interest” parole authority. The abuse of this parole authority, along with Mayorkas’s refusal to detain illegal migrants, are the two battering rams this administration is using to turn the United States into an open-border country.

For context, the concept of parole provides limited presidential authority, in exceptional cases, to simply admit (“parole in”) individual foreigners into the country without a visa.

Through Congressional clarifications, the INA has been adjusted to make clear parole is not authorization for presidents to create their own immigration programs. Congress has always retained constitutional authority to “establish a uniform Rule of Naturalization” (Article I, Section 8), which gives it, not the executive, sole power to set the law for short-term visitors and permanent migrants.

But as with so many other matters concerning the separation of powers, the modern Congress is institutionally lazy and incapable of keeping up with an imperial executive. That is why the House’s impeachment against Mayorkas on this issue is a blast of fresh air, striking directly at the administration’s outrageous ultra vires abuse of parole. The articles of impeachment state:

Mayorkas created, reopened, or expanded a series of categorical parole programs never authorized by Congress for foreign nationals outside of the United States, including for certain Central American minors, Ukrainians, Venezuelans, Cubans, Haitians, Nicaraguans, Colombians, Salvadorans, Guatemalans, and Hondurans, which enabled hundreds of thousands of inadmissible aliens to enter the United States in violation of the laws enacted by Congress.

The House could have also added Ecuadorians to that long list, and probably other nationalities we do not even know about. Mayorkas simply invented new mass immigration programs, under the pretext of parole, directly assaulting the long-recognized, exclusive authority of Congress to control the numbers and standards under which foreigners are admitted into the country.

Historically, it is true, presidents have used, and abused, parole authority as a diplomatic tool to admit large numbers of foreigners. This was done to tamp down a potential migrant stampede (e.g., President Clinton paroling in Cubans) and to serve the White House’s idea of justice (e.g., Obama paroling in Central American children).

Nevertheless, the abuse under Biden is unprecedented. Mayorkas paroles refugees, asylees, displaced Afghans, economic migrants, and about any population group for whatever reason the secretary deems as “humanitarian” or in the “public interest.”

Congress could have tried to defund DHS’s improper parole activities, but impeachment is another appropriate tool to fight back against federal officers who flout the law. Given the long history of parole abuse, even after Congress changed the law, impeachment is in fact overdue.

The impeachment articles also contain a range of other charges against Mayorkas that include violating the public trust, lying to Congress, flagrantly ignoring terrorism-related migrants, allowing fentanyl to enter the country, and perpetrating other misdeeds. Some may be impeachable and some may be, as Congressman Buck would say, just policy disputes. They all deserve to go before the Senate.

The House’s impeachment is warranted and long overdue against this renegade DHS secretary. The battle to stop the illegal opening up of our country’s borders demands impeachment. It is not just a matter of Mayorkas’s gross abuses; it is a matter of Congress restoring itself to constitutional primacy.