The big news of yesterday was the House’s impeachment of DHS Sec. Alejandro Mayorkas. Big since it’s the first time an official other than the president has been impeached by the House in 150 years. I think the House erred in impeaching him although possibly for different reasons than most who agree with my view. In today’s Wall Street Journal Tennessee Rep. Mark Green has an op-ed defending the House’s action. Here are some snippets.
There are two primary grounds justifying this historic act by Congress. First, Mr. Mayorkas willfully refused to comply with the law, blatantly disregarding numerous provisions of the Immigration and Nationality Act. Though that law contains several detention mandates, Mr. Mayorkas directed the release of millions of inadmissible aliens into the country. He abused the statute allowing for parole on only a case-by-case and temporary basis and oversaw more than 1.7 million paroles. He created categorical parole programs contrary to the statute. In the interior, he directed Immigration and Customs Enforcement personnel not to detain most illegal aliens, including criminals. In his September 2021 enforcement guidance, the secretary directed that unlawful presence in the country was no longer sufficient grounds for removal, and that criminal convictions alone weren’t enough to warrant arrest. This guidance was contrary to the law.
Second, Mr. Mayorkas breached the public trust, both by violating his statutory duty to control the border and by knowingly making false statements to Congress. Under oath, he claimed to have operational control of the border, as defined by the Secure Fence Act, only to say later that he never made such a claim. He even testified that “the border is no less secure than it was previously”—a demonstrable lie. Mr. Mayorkas has also obstructed congressional oversight, forcing the committee to issue two subpoenas for documents, which are still unfulfilled.
and
Impeachment doesn’t require the commission of indictable crimes. The framers of the Constitution conceived of impeachment as a remedy for much more expansive failures. When officials responsible for executing the law willfully and unilaterally refuse to do so, and instead replace those laws with their own directives, they violate the Constitution by assuming power granted solely to the legislative branch. They undermine the rule of law itself—an offense worthy of impeachment and removal.
concluding:
There is little doubt that the framers, who cast aside tyrannical rule in favor of representative government, would view Mr. Mayorkas’s refusal to comply with the law and breach of public trust as impeachable. He is the type of public official for which they crafted this power. The Senate must finish the House’s work and convict Secretary Mayorkas.
I would be completely flabbergasted if the Senate convicted Sec. Mayorkas. For one thing the offenses for which he was impeached probably apply to the entire cabinet and President Trump’s cabinet before them. We know, for example, that several successive DCIs have lied to Congress and also violated the law. Where do you stop? Indeed, what are the stopping criteria?
Furthermore, isn’t the real question what direction has Sec. Mayorkas received? If he was directed to take the actions of which they’re accusing him, should he be impeached for them?
The House has long been dysfunctional, but the current GoP led House has taken it to the next level. Beyond opposing anything Democrats want and doing anything to help Trump, it’s not clear they have any goals, policies, or actual agenda.
For doing what he was told?
He should have resigned instead.
There are practical limits to immigration no matter noble principles or intentions.
During the Constitutional Convention, a motion was made to disallow the President from being impeached, the reasoning being given that the President cannot commit any wrong without “Coadjutors” who could be punished instead. This seems to originate from how British government saw the role of the monarchy, and the importance of corrupting ministers that actually carry out the policies. The motion failed for a variety of reasons, some to do with appearance or creating bad incentives that do not necessarily dispense with the notion that primary responsibility may not be with the President. I think Jefferson’s criticisms of the drift of policy under Washington was usually directed at Hamilton, his people and his advise.
The SCOTUS is declining to adjudicate the President’s duty to take care that immigration laws are followed, leaving it as a political issue to which impeachment is an option. I think there is a lot to be said for impeaching officers instead of the President in that it reduces the stakes and makes the political point more effectively. Every time someone is impeached, the party on one side claims that it is a remedy only suitable for the highest offenses and the other says its ultimately a political act. And then they switch sides.
Immigration law also grants the government a broad power to parole people into the United States. Courts won’t allow the government to detain people in overcrowded, inhumane conditions. If the government is acting outside the law, then go to court. If Congress wants to narrow this power, they can enact legislation. This impeachment is just political noise and ultimately weakens Congressional power.
“Furthermore, isn’t the real question what direction has Sec. Mayorkas received?’
If Biden told him to rob a bank, should he get off?
Look, you have two issues. Willful breaking of the law, and the moral imperative to do the right thing.
He has broken the law by failing to enforce existing law, and by lying under oath. Morally, he has proven himself a whore. The “out” you given him.
Under your query, impeach them both. Don’t let him off the hook. Does the law mean anything anymore, or is it just hooray for our side?
On the second issue, I’ve never needed a job so bad that I would beclown my self by testifying before Congress that “the border is secure.”
The consequences of the current policy and its execution are significant. Human trafficking. Drugs. National security. The economic welfare of our least prosperous citizens. This is a national disgrace.
Immigration law expressly and clearly prohibits blanket paroles which are what are being done.
I agree. It is a debased age. That still doesn’t answer my question: where does it stop? If every appointed official who has lied to Congress and broken the law were impeached there wouldn’t be enough left to play a hand of bridge.
Dave Schuler: Immigration law expressly and clearly prohibits blanket paroles which are what are being done.
Each parolee is treated individually, but entire classes are released. That’s fairly typical enforcement discretion. Nor is there any way to detain everyone humanely. Again, that would be something for a court to decide.
If every appointed official who has lied to Congress and broken the law were impeached there wouldn’t be enough left to play a hand of bridge.
Sounds like a good start.
Let’s stipulate that impeachment would exhaust the system of appointees. That leaves the ballot box as the corrective mechanism.
That in turn would require honest journalism. And an engaged public.
I don’t know about you, but that leaves me in a pessimistic mood.
I’m honestly taken aback that your response to this is “he was just following orders.” I hope you’ll consider PD Shaw’s comment and Grey’s suggestion that resignation would have been appropriate for a cabinet official given orders that are untenable.
Consider too that impeachment serves as a safety valve. Mayorkas should welcome impeachment in lieu of angry mobs.
I have been moved from a lukewarm position on immigration to a red hot opponent of the current open border (which gravely harms US citizens and does disservice to migrants who are trapped in this horrible situation based on empty promises and extortion from traffickers.)
And I’m a very mild mannered person so it takes a lot to rile me. If I feel this much anger, you can be certain that we are not far from a tipping point when some of these officials will wish they’d only been impeached.
My point is that they are impeaching the wrong person. What good does it do to impeach an official who will be replaced by someone else who will do exactly the same things?
Trump wasn’t able to control the border either and has stated he doesn’t want it controlled since he thinks it will help him get elected.
It’s a fiction that this problem would be solved if only the President or his agent in the DHS Secretary would do some unspecified jobs.
The majority of people coming into the country are gaming and overloading the asylum system. They know the magic words to say to get temporary legal status to be in the country pending adjudication which doesn’t happen for years because of the load.
So I don’t take this impeachment seriously at all and won’t until this House actually passes something that would address the very real problem of gaming the asylum system – which there was an opportunity for until the GoP melted at Trump’s insistence there be no deal on the border because it would help Biden politically.
https://www.city-journal.org/article/a-border-crisis-by-design
“Immigration law expressly and clearly prohibits blanket paroles which are what are being done.”
And we clearly dont have enough people to accomplish that. You opposed the recent bill that would provide some funding to work towards that end. You opposed the bill that would have funded more detention space so that people would be less likely to need parole. Needless to say, the GOP also opposed that bill which would have also added more funding for border patrol to catch people and to change the asylum rules to make it harder to get asylum.
Steve
From the article I linked to above (emphasis added)…
The administration’s primary justification for releasing massive numbers of aliens into the U.S. is that it doesn’t have the space or personnel to detain them as the law requires. But as a 2023 DHS Inspector General report notes, “Since FY 2019, Congress has authorized most of the law enforcement personnel that CBP and ICE [Immigration and Customs Enforcement] requested.” Judge Wetherell observes that DHS had the capacity to detain an average daily population (ADP) of 55,000 just five years ago, but under the Biden administration “DHS requested a reduction to 32,500 ADP for fiscal year 2022” and for FY 2023 “requested a further reduction to 25,000 ADP.”
Congress nevertheless approved funding for 34,000 ADP for FY 2023. This year, in its 119-page FY 2024 Budget in Brief—under the heading of “Major Decreases”—DHS requested that detention space be reduced to 25,000 ADP for FY 2024, touting that this would save $555 million versus 2023 outlays. In short, the Biden administration is claiming that there isn’t enough detention space, while simultaneously proposing further reductions in detention space.
I’m so tired of the political games. It’s clear that no one in DC wants to fix this problem but rather posture about how the other party is to blame. If Trump killed the recent bill out of political self-interest, likewise the Democrats (and GOP-e led by McConnel) were just trying to get a feckless bill passed to claim that they were “doing something”.
CStanley (quoting): “requested a further reduction to 25,000 ADP.”
That’s because, under current law, it can take years to adjudicate asylum claims. The purpose of detention, then, is to hold individuals long enough to identify and process people for parole or expulsion (such as for those who pose a security threat). There is no reasonable way under current law to hold people until their cases are adjudicated.
CStanley: a feckless bill
By tightening requirements for asylum claims, it reduces the need for paroling large numbers of people for later adjudication. It does create a need for more detention as the initial asylum requirements are screened. The advantage is two-fold: it dramatically reduces the numbers of parolees, and it creates a disincentive for people to make the long and dangerous trek looking for work.
The border crisis is fueled by the information technology that is relatively new. When policymakers, politicians speak off the cuff, Biden, “I say if you want to come to America, come to America “, or Trumps “roundups and mass deportation’s
“, people hear it all around the world instantaneously. It’s true that immigrants share information about routes and are coached to make refugee status.
It’s also true that a culture that whacks whole families into chunks with machetes,
traffics women and children for sex, governed completely by fear and graft, is incompatible with American standards.
One way or another, as anger builds, the borders will be secured, either by official actions or by angry mobs.
ElSalvador reached their breaking point,
new president, marshal law, building a 40,000 man prison in 18 months. Full.
Leaders have to listen and lead or nature takes its own course.
There’s essentially no difference between 25k and 34k in detention capacity when there are 2.5 million arrivals annually, and there is a 2 million+ backlog in processing claims.
And look at how expensive it is. Reducing the detention capacity by 9k is $555 million. So that works out to about $62k a year to detain a single person. Yay America!
The only answer is to change the asylum law so that gaming the system is no longer possible and so that claims can be adjudicated quickly. The bill that Trump made his lap-dogs in the GoP kill would have been a big step to doing that.
Both sides have played politics with he number of detention beds. Stanley is correct that it has often been the Dems pushing for fewer beds, however, forgets to note that they also advocate for increased use of ankle monitors. So I guess you can argue about past decisions and what was correct, but in the current case the Dems have asked for an increase in funding to increase detention slots. In theory this should have been something the GOP would want. Finally, a bipartisan agreement, but Trump shot it down and now we are releasing people again.
https://www.washingtonpost.com/immigration/2024/02/14/immigration-customs-enforcement-budget-deficit-republicans/
Steve
I’m working on a post to explain why the asserted claims for the Senate bill are mostly fantasies. It boils down to
a) it institutionalizes present levels of migration
b) real people don’t behave the way advocates for the Senate bill claim they will
c) legal action would prevent any of the supposed benefits from taking place
I look forward to your post, Dave. I vaguely sense that the bill was unrealistic and meant to sound good on paper while accomplishing next to nothing but I’m sure you can articulate the reasons much better than I’d be able to.
I think people who are politically moderate should take note that the major reason that many of us have stopped supporting these “Major Bipartisan Compromises” is that we’ve begun to see through the smoke and mirrors. If moderates would also recognize this and push for meaningful legislation (and for the executive branch to actually enforce it) then perhaps we wouldn’t be at such an impasse.
I think the impasse is caused by the polarization of the political parties and that in turn is caused by the losses of moderates in swing districts.
That has resulted in a generally more radical Congress with very few points of agreement between the two parties. It doesn’t help when siding with the other party against your own is considered treason to your party.
Well I disagree with this:
That has resulted in a generally more radical Congress with very few points of agreement between the two parties.
I think there’s a huge amount of overlap in what the elected officials of both parties want but they have to sell it to their constituents in very different ways. The constituents have gotten wise to the bait and switch tactics so the grand compromises aren’t selling well anymore.
Dave Schuler: That has resulted in a generally more radical Congress with very few points of agreement between the two parties.
The Democrats gave the Republicans nearly everything they wanted on the border bill, including not including a fix for Dreamers, but the Republicans then reneged anyway.
The Democrats gave the Republicans nearly everything they wanted on the border bill,
Now that’s just absurd. The bill at best would take the monthly influx from the 300,000 we experienced in December to 150,000 (since it allows 5000 per day.) Sure, that’s a marginal reduction but it’s spitting in the wind.
CStanley: Now that’s just absurd.
That position requires completely ignoring our direct reply to you above.
Not ignoring, but dismissing your claims of the effects on asylum seekers as wishful thinking.
I should clarify though (to be consistent with my response to Dave above) that I do think the bill gave what a lot of our GOP elected leaders want, especially the Senate leadership-but they are completely out of touch with the voters.
CStanley: Not ignoring, but dismissing your claims of the effects on asylum seekers as wishful thinking.
You addressed the daily cap, but you did not address the more stringent requirements for asylum application in your comment. You still haven’t addressed it—except to wave your hands.
My reading of the new stricter requirement is that the bar would be raised from “significant possibility” of persecution to “reasonable possibility” of same. Would you care to try to convince me that this one word substitution will keep hundreds of thousands of people from attempting to game the system?
CStanley: My reading of the new stricter requirement is that the bar would be raised from “significant possibility” of persecution to “reasonable possibility” of same.
It’s a higher standard, meaning more migrants will be immediately denied asylum, and more people will be sent back.
There are several provisions that work together. Along with the higher standard, the bill establishes an expedited system for adjudication, so there will be less need for parole. It grants the president authority to shut down the border when the system becomes overwhelmed. Again, that means fewer parolees, certainly fewer that won’t qualify for asylum. And the more people who are denied entry or sent back, the less incentive for migrants to make the dangerous journey without a valid asylum claim.
It all sounds like a proposal to put a few bandaids on a ruptured aortic aneurysm.
CStanley: It all sounds like a proposal to put a few bandaids on a ruptured aortic aneurysm.
You do realize that the United States is still committed to providing refuge for legitimate asylum seekers, consistent with international treaty obligations?
Sure. And also aware that this commitment is being exploited because we can’t possibly handle the volume of people presenting with these claims and process applications in a timely manner. Thus, the gaming of the system.
CStanley: And also aware that this commitment is being exploited because we can’t possibly handle the volume of people presenting with these claims and process applications in a timely manner.
You got it! (Though many people may think they have valid asylum claim who may not.) Hence, tightening the initial screening, quickly adjudicating cases, and shutting the process down when the system becomes overwhelmed is a good way to reduce invalid asylum claims, scale back immigration flow and stop paroling people into the U.S. who don’t have reasonable asylum claims.
You and I apparently differ greatly in our skepticism that this bill would affect the process in any meaningfully positive way. In my estimation too there is a high potential for negative knock on effects- what happens to the people blocked if or when the border is “closed”? If the current rate is exceeding the 5000 encounters by roughly 3000 per day, I would expect that those 3000 would try to be first in line the following day- and then greater than 5000 more people arrive that following day and the numbers of migrants continue to accrue to create a new crisis. I have no idea what the adjudication process involves and how much it could be sped up to process more people at the point of entry but can’t conceive of any way for it to accelerate to that degree.
CStanley: If the current rate is exceeding the 5000 encounters by roughly 3000 per day, I would expect that those 3000 would try to be first in line the following day-
You already noted the basic problem—people without valid claims overwhelming the system and being released into the U.S. on parole, with adjudication taking years. By increasing the evidentiary requirements for application, those without a valid asylum claim can be immediately refused entry or deported. That will mean fewer cases. With fewer cases, an increase in detention facilities, and an increase in judges to decided the cases, that means far fewer parolees.
As for the border shut down provision, if crossings are over 5,000 a day for a week, then only 1,400 asylum application per day will be allowed at legal ports of entry, subject to the new evidentiary rules. Everyone else, including those caught outside a port of entry, can be turned around or deported. The border will remain closed until the rate of crossings fall to 75% of the trigger point. If people continue to surge the border, then people will continue to be turned away regardless of any asylum claim.
While it can be argued the security bill is far from perfect, it is also far better than the current system of catch and release because of the disincentives.