12 min read

Make Congress Relevant Again

American legislators will do anything to avoid legislating — even symbolically impeach the Secretary of Homeland Security.
Make Congress Relevant Again
Photo by the World Travel & Tourism Council

Good morning! It’s Tuesday, January 30, 2024. Election Day is 280 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

Here’s what’s on the menu this morning. I’d like to:

  • Answer two questions I received about the attempts to impeach Alejandro Mayorkas, the Secretary of Homeland Security.
  • Put those efforts in the context of previous impeachments.
  • And, finally, make a broader point about what the impeachment push tells us about Congress’ legislative (in)capacity in the modern age.

So, let’s start with the questions:

I. Why Mayorkas is being impeached

Brent B. asks: “Lots going on but my question has to do with the Republican effort to impeach Homeland Security Secretary Mayorkas. I understand that Cabinet members can be impeached for ‘high crimes and misdemeanors,’ but all I have seen from Republicans so far is blatantly partisan criticism that he is not ‘enforcing the law’ and is in charge of a failed immigration program. The immigration program is obviously in trouble (or even a disaster) but what evidence can the Republicans present that this reaches the bar for impeachment? This approach would seem to open up any official to impeachment by the opposition party who disagrees with a program or policy.”
Jolie F. asks: “I’m a little confused about why Secretary Mayorkas is getting impeached. Is that something you’d be willing to elaborate on?”

In cases like this, I find it’s always best to go straight to the source. The House Homeland Security Committee is set to vote today on two articles of impeachment against Mayorkas. The articles are only 20 pages long and fairly readable — but if you want to save some time, I can summarize them for you here.

The first charge against Mayorkas — “willful and systemic refusal to comply with the law” — is essentially that he has failed to carry out certain U.S. laws, in violation of his oath of office.

The allegations here largely revolve around various provisions of one law (the Immigration and Nationality Act, or INA) and Mayorkas’ implementation of two administration policies (“catch and release” and humanitarian parole) that committee Republicans say conflict with the statute.

“Catch and release” is an umbrella term for policies that allow migrants apprehended at the border to be released into the U.S. while they await judicial proceedings, as opposed to detaining them in the interim. (The INA states that such migrants “shall be detained” if an immigration officer determines that they are “not clearly and beyond a doubt entitled to be admitted” into the country.)

Humanitarian parole, first instituted by the INA in 1952, is a tool the government can use to allow otherwise inadmissible migrants to enter or remain in the U.S. “on a case-by-case basis for urgent humanitarian or significant public benefit” reasons. (The Biden administration has repeatedly used the tool for entire groups of migrants, including from Ukraine, Afghanistan, Haiti, and Venezuela.)

The second charge against Mayorkas — “breach of public trust” — accuses him of making false statements and otherwise obstructing House investigations into his actions.

The alleged misdeeds here include his failure to comply with subpoenas (Republicans charge that the Department of Homeland Security has ignored 173 requests for information) and his 2022 claim that DHS has “operational control” of the border. (A 2006 law defines “operational control” as “the prevention of all unlawful entries into the United States,” which quite clearly has not been achieved.)

II. Is that impeachable?

According to Article II, Section 4 of the Constitution, U.S. civil officers — of which Mayorkas is one — can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.”

Your first impulse, then, might be to search the U.S. Code and look for whether there’s a misdemeanor outlining “breach of public trust” — but you won’t find one, and you don’t need to. Articles of impeachment do not have to cite specific statutes in the way that criminal indictments do. There’s no law against “incitement of insurrection,” either.

So, really, anything can be impeachable as long as 218 House members say it is.

The question more worthy of investigation — knowing that “impeachability” is a moving target, not an objective standard — is whether Mayorkas really has done what he’s accused of, failing to enforce U.S. immigration law.

I think the best answer to this is Perhaps, but in perfectly typical ways.

On catch-and-release, yes, there are unauthorized migrants clearly not being detained, as the plain text of the INA calls for. But previous presidents — including the Trump administration — have had the same policy, and the Supreme Court affirmed just last year in United States vs. Texas that the Executive Branch has discretion over which violations to prioritize when enforcing immigration law.

More to the point, DHS simply does not have the resources necessary to detain every single migrant arrested for illegally crossing the border. This speaks to a broader deficiency in the U.S. immigration system — but it is one that has plagued DHS for decades, long before Mayorkas. Trump, for example, railed against “catch and release” on the campaign trail, but when he tried to replace it with a “zero tolerance” policy in office, he was forced to reverse himself in about three months, both due to outcry over family separation and because Border Patrol agents quickly found themselves overwhelmed by the impossibility of detaining every attempted crosser.

On humanitarian parole, as well, several previous administrations have interpreted the “case-by-case” provision just like Mayorkas has. This interpretation allows for everyone in a large group to be granted a presumption of parole at the same time — as long as each individual parole application is reviewed on a case-by-case basis. Perhaps this is a flawed interpretation of the statute, but it is far from a new one.

On the question of “operational control,” Mayorkas has noted that he was referring to how the term is colloquially used inside the department, not the statutory definition. As he has pointed out, under the statutory definition — which calls for zero illegal immigration — no administration has ever had “operational control” of the border. Fair enough, although he probably should have made that clearer when testifying to Congress under oath.

Judges are currently reviewing Biden’s use of both “catch-and-release” and humanitarian parole. But until their final verdicts are issued, both allegations seem to exist in legal gray areas: you could certainly mount a credible argument that the Biden administration is incorrectly applying the law, but it seems a stretch to say that Mayorkas is doing so in a way much unlike his predecessors.

Even if those policies are overturned in the courts, impeachment would still be an ill-fitting remedy. Administrations have policies blocked by judges all the time. No one impeached Homeland Security Secretary John Kelly for implementing Trump’s so-called “Muslim ban,” even though it was found to be unconstitutional. Generally, implementing administration policies — including ones struck down by the Supreme Court, which these ones haven’t even been — has not been thought to meet the bar of extraordinarily offensive actions understood to merit impeachment.

III. Is this the best way of doing this?

Luckily, though, if Congress finds the Biden administration’s immigration enforcement to be inadequate (as most Americans do), they have other options in their toolkit short of impeachment. And many of them.

Back in July, I wrote a piece called “The incredible shrinking Congress,” which criticized lawmakers for shouting at problems rather than solving them, doing anything they could to avoid, well, making laws. That was mainly about legislators outsourcing their Article I duties to the executive and judicial branches — but the same critique applies here, as the House attempts to outsource a necessary conversation on immigration policy to a doomed impeachment trial.

As has been well pointed out, impeaching Mayorkas — or any other official — will not solve the crisis at the southern border, since Biden can merely appoint a successor with the same policy agenda.

But maybe, if Congress was interested in changing U.S. immigration policy, passing a law or two might do the trick. The Republican-led House approved H.R. 2, which would end “catch and release” and limit parole authority, the substantive critiques at the heart of this impeachment, back in May. To be fair to the lower chamber, the Democratic-led Senate has not — until very recently — evinced any interest in putting forward their own reforms on this issue.

Yes, President Biden proposed an immigration reform package on his first day in office — but he then proceeded to not put any political capital behind pushing it, prioritizing climate change, gun control, and other issues while border crossings soared, overwhelming many cities. Democrats had a political trifecta for two whole years, and only attempted to pass anything resembling an immigration bill as part of a larger reconciliation package. (The Senate parliamentarian said it was against the rules.)

It is only now, with the border having emerged as one of Biden’s most glaring vulnerabilities — and with one of his top priorities, Ukraine aid, hanging in the balance — that Democrats have (very) belatedly embraced the need to secure the border. Unfortunately, that means it is no longer in Republicans’ political interest to pursue a border deal. On a political level, this makes perfect sense in an election year; on a civic level, it is regrettable. (There is often a small window at the beginning of an administration when it’s in the interest of both parties to strike bipartisan compromise; from then on, they’d generally rather campaign than legislate on an issue.)

Indeed, at the same time as they are attempting to impeach Mayorkas for failing to secure the border — something that will decidedly not lead to a secured border — many Republicans are turning their nose at an anticipated deal that will actually limit illegal border crossings and rein in the parole system. Not only that, but they are explicitly saying that Congress should play no role in the border debacle (except for impeaching Cabinet functionaries, of course).

“NO LEGISLATION IS NEEDED, IT’S ALREADY THERE,” former President Donald Trump announced in a Truth Social post on Monday, arguing that his likely opponent need only pursue executive action to fix the border.

And while that might be the exact kind of language you’d expect from an aspirant for the presidency, you’d think that Congress’ top constitutional officer would try to offer an argument for his own branch’s relevance. Think again.

House Speaker Mike Johnson (R-LA) released a statement on Friday suggesting that he would not accept the coming Senate deal, and that all that’s needed to enhance border security is executive action anyhow. “The Immigration and Nationality Act coupled with recent Supreme Court precedent give [President Biden] ‘ample authority’ to ‘suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,’” Johnson said.

Of course, the existence of prior law on an issue should not preclude future law from being passed, especially if lawmakers are (clearly) upset with how the prior law is being implemented. If your entire job is to write laws, why not at least try to force a clarification of “case-by-case” in humanitarian parole, or negotiate with senators on “catch and release,” or reach for a more workable definition of “operational control,” if the status quo on those issues is undesirable to you? Once again, Congress is willingly forking over its own lawmaking power to the executive and judicial branches.

“Here, in light of the inability of injured parties [according to a Supreme Court ruling] to seek judicial relief to remedy the refusal of Alejandro N. Mayorkas to comply with Federal immigration laws, impeachment is Congress’s only viable option,” the Republican-written articles read. But, surely, crafting new, clarifying laws is an option as well.

Republicans are looking for a way to highlight their disapproval of the border situation, and have plainly calculated that a symbolic impeachment vote carries more political upside than working towards a true solution, the enactment of which might give Democrats a boost. (This calculation also serves to keep Johnson’s right flank happy, which helps his job security.)

Equally cynically, Democrats have acted in the converse, waiting until they spy a political advantage to get serious about the border. Republicans have earned the right to criticize the Biden administration for their border polices. But, after bashing their opponents for being late to the party, one would hope they would move on to celebrating that they’ve arrived at all. This is an issue where there is a problem, and there are bipartisan solutions on the table. To respond with flash (an impeachment) over substance (comprehensive legislation) will only push Congress farther down the road of irrelevance in America’s most pressing national debates.

More news to know.

President Biden receives a briefing on the Middle East on Monday. (White House)

Middle East

* The military failed to stop last weekend’s deadly attack on U.S. troops in Jordan because the “drone approached its target at the same time a U.S. drone was also returning to base,” leading to “confusion over whether the incoming drone was friend or foe,” per the Wall Street Journal. The U.S. has blamed the attack on Iranian-backed militants.

* President Biden is facing pressure to launch a retaliatory attack against Iran. According to CNN, the U.S. response is “likely to be more powerful than previous American retaliatory strikes in Iraq and Syria,” although Biden aides are trying to calibrate to avoid a wider regional war. “We’ll hold all those responsible to account at a time and in a manner of our choosing,” Biden said on a Twitter.

* Meanwhile, Iranian proxies launched another attack Monday morning, striking a U.S. patrol base in northeast Syria. Per Politico, it was the 165th time U.S. troops have been attacked in the Middle East since October.


* Speaker Mike Johnson (R-LA) announced for the first time that he plans to put the bipartisan tax package to a vote on the House floor this week. The package would expand the Child Tax Credit, while also offering tax breaks for businesses.

* The Justice Department is investigating an unnamed House Democrat for allegedly misusing government security funds, Punchbowl News reported.

* The Nebraska Republican Party has declined to endorse any of the state’s five Republican members of Congress — and backed primary challengers to several of them — amid a continuing feud with the GOP delegation.

Campaign 2024

* As the U.S. economy improves, Donald Trump is trying to prevent Joe Biden from taking credit for the stock market’s record highs. “THIS IS THE TRUMP STOCK MARKET BECAUSE MY POLLS AGAINST BIDEN ARE SO GOOD THAT INVESTORS ARE PROJECTING THAT I WILL WIN, AND THAT WILL DRIVE THE MARKET UP,” Trump wrote in all-caps post on Truth Social.

* After years of synchronized primary calendars, Democrats and Republicans are staging separate nominating contests in all four early states — Iowa, New Hampshire, South Carolina, and Nevada — this cycle. The result is confusing voters, the New York Times reported.

Biden administration

* Defense Secretary Lloyd Austin returned to work at the Pentagon on Monday, after an absence that stretched longer than a month as he was treated for a prostate cancer that was originally kept secret.

* Austin’s lack of transparency sparked new guidelines for Cabinet members to notify the White House if they need to temporarily transfer their authority. Accordingly, Attorney General Merrick Garland announced Monday that he will turn over duties to his deputy this weekend as he is put under anesthesia for back surgery.


* China has promised Hong Kong control over its own affairs until at least 2047. But Beijing-backed developments along the China-Hong Kong border are set to further integrate the territory with mainland China, a move that echoes Xi Jinping’s efforts to politically subsume Hong Kong as well.


* A former IRS contractor who leaked the tax records of Donald Trump, Jeff Bezos, Elon Musk, and other figures was sentenced to five years in prison on Monday.


* Musk announced on Monday that his company Neuralink had implanted a brain chip in a human subject for the first time. According to Musk, the subject is “recovering well” and the “initial results show promising neuron spike detection.” The FDA signed off on the tests — the first step in Neuralink’s plans to create a “brain-computer interface” — last year.

The day ahead.

The House will vote on Border Patrol speed cases today. (Alex Smith)

White House: President Biden will participate in campaign fundraisers in Jupiter and Miami, Florida. Vice President Harris has nothing on her public schedule.

Congress: The Senate will vote on confirmation of Joshua Kolar to be a U.S. Circuit Judge for the Seventh Circuit.

The House will consider the Agent Raul Gonzalez Officer Safety Act, which would make it a federal crime to use a motor vehicle to evade arrest by the U.S. Border Patrol within 100 miles of the U.S. border. The measure would also prohibit any migrant convicted of that crime from receiving legal immigration status in the U.S.

The House Homeland Security Committee will vote on impeachment articles against Homeland Security Secretary Alejandro Mayorkas.

Supreme Court: The justices have no oral arguments scheduled this week.

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