# Secretary Mayorkas Is Being Impeached for Following the Law on Border Enforcement 

Republicans are the ones making unconstitutional demands.

February 7, 2024 • Commentary 

By [David J. Bier](https://www.cato.org/people/david-bier) 

This article appeared in *[The UnPopulist](https://www.theunpopulist.net/)* on February 7, 2024. 

While Senate Republicans were busy derailing a bipartisan border security bill yesterday, their House colleagues were voting to impeach the Department of Homeland Secretary Alejandro Mayorkas over his border policies. Their motion was narrowly defeated 214–216, so they are vowing to try again.

Mayorkas would have been the first government official to be impeached for actually staying within the bounds of the Constitution. In fact, it is the Republicans who are making unconstitutional demands.

In the impeachment articles they drafted, they alleged that Mayorkas failed to block immigrants entering not just illegally but also legally and detain them—in inhumane and unconstitutional conditions—rather than release them. Even more absurd than the allegations is the fact that in the process of making them, Republicans repeatedly misstated the law, quoted overturned court decisions, and, hilariously, confused DHS Secretary Mayorkas’ actions with those of Secretary of State Antony Blinken and others.

Republicans are the ones making unconstitutional demands.

All of this proves just how Orwellian our political discourse on immigration has become.

Let’s go through their allegations.

**Imaginary Legal Violations**

House Republicans claim that Mayorkas is releasing immigrants in explicit violation of congressional mandates requiring their detention. It is debatable whether what they are referring to are really “mandates” given that other statutes permit release. But the bigger problem is that Congress has never bothered to fund these so-called mandates. My [best estimate](https://www.cato.org/blog/trumps-detention-surge-failed-significantly-increase-removals) is that to avoid any releases at all, DHS would need about 1.5 million detention beds—more than [the total U.S. prison population](https://bjs.ojp.gov/library/publications/prisons-report-series-preliminary-data-release#:~:text=Final%2520statistics%2520will%2520be%2520published,increase%2520from%25202021%2520(1%252C205%252C100).). In reality, Congress has [funded only 34,000](https://www.appropriations.senate.gov/news/minority/senate-committee-approves-fy24-homeland-security-appropriations-bill) beds and the administration has crammed in [37,000](https://www.cato.org/blog/trumps-detention-surge-failed-significantly-increase-removals). House Republicans passed funding for only [41,000](https://appropriations.house.gov/news/statements/joyce-remarks-fy24-homeland-security-appropriations-bill-full-committee-markup) beds this year. There is a good reason for that, namely, that there simply isn’t enough money in the bank to fund such a massive incarceration state without gutting other federal priorities.

Given the resource constraint, it would be unconstitutional for Mayorkas to detain every border crosser. Courts have repeatedly [slapped](https://scholar.google.com/scholar_case?case=2459867595361860188&hl=en&as_sdt=6&as_vis=1&oi=scholarr) Border Patrol, especially the Trump administration, [for violating](https://casetext.com/case/unknown-parties-v-nielsen) the Constitution by detaining people in horrific conditions where they are [deprived](https://www.cato.org/blog/are-cbps-filthy-inhumane-immigrant-detention-camps-necessary) of sleep or adequate food and hygiene. The Constitution’s prohibition against “cruel and unusual punishments” wouldn’t allow such treatment for [convicted murderers](https://www.law.cornell.edu/constitution-conan/amendment-8/conditions-of-confinement), let alone people detained for a [civil violation](https://www.aclu.org/sites/default/files/pdfs/prison/unsr_briefing_materials.pdf) of [a regulation](https://www.cato.org/blog/what-makes-crossing-border-illegal-dhs-does). In other words, Republicans are suggesting that following the Constitution is an impeachable offense.

During the [markup](https://homeland.house.gov/hearing/full-committee-markup-of-articles-of-impeachment-against-dhs-secretary-mayorkas/) on the impeachment bill, some Republicans admitted that it would be impossible to detain every single border crosser, but they felt Mayorkas wasn’t putting in enough effort. This is despite the fact that Mayorkas has unfortunately been detaining and forcibly removing more immigrants than [any administration](https://www.dhs.gov/ohss/topics/immigration/yearbook/2022) since 2001. He [expelled](https://www.cato.org/blog/new-data-show-migrants-were-more-likely-be-released-trump-biden) a higher share of border crossers during his first two years than Trump did during his last two. What is he supposed to do? Physically push migrants into vans?

Republicans also accuse Mayorkas of violating the law by prioritizing enforcement against more recent border crossers and those who pose a genuine public safety or security threat. They want no prioritization at all—never mind that Congress has *[required](https://dhs.gov/sites/default/files/2023-11/03_0116_hr_5005_enr.pdf)*DHS to prioritize. The committee that drafted the articles of impeachment cited an appeals court decision briefly blocking Mayorkas’ enforcement strategy in *[U.S. v. Texas](https://www.scotusblog.com/case-files/cases/united-states-v-texas-5/)*. But the Supreme Court *reversed* that ruling 8–1. Indeed, that 2023 [ruling](https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf) correctly noted:

> \[T\]he Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by \[the detention mandates\]. That reality is not an anomaly—it is a constant. For the last 27 years since \[the mandates\] were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests. In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch *must* balance many factors when devising arrest and prosecution policies. *(Emphasis added.)*

But the impeachment articles aren’t done quoting overturned court decisions. They also claim that Mayorkas violated the law by releasing immigrants from detention on “parole”— handing them temporary permission to enter and stay. They cite another appeals court decision in *[Biden v. Texas](https://www.scotusblog.com/case-files/cases/biden-v-texas-2/)* (2022) to back its position. But that decision too was [unequivocally repudiated](https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf) by the Supreme Court. The law, the court noted:

> expressly authorizes DHS to process applicants for admission under a third option: parole. See 8 U. S. C. §1182(d)(5)(A). Every administration, including the Trump and Biden administrations, has utilized this authority to some extent.

But it’s not just unauthorized border crossers that Republicans are upset about. They also complain that President Biden is using his parole authority to authorize some immigrants to travel *legally* to the United States from Ukraine, Cuba, Haiti, Nicaragua, and Venezuela so long as they can find Americans willing to assume partial financial responsibility and sponsor them on humanitarian grounds. This program has [reduced illegal immigration](https://www.cato.org/briefing-paper/parole-sponsorship-revolution-immigration-policy) from those countries dramatically. In a rational world, Congress would ask DHS to expand these programs to other countries. Instead, Mayorkas is being impeached for *decreasing* illegal immigration.

House Republicans assert that these “categorical” parole programs are unlawful because they don’t judge people on a case-by-case basis, as the law requires. In fact, that is [exactly](https://www.uscis.gov/CHNV#:~:text=The%2520U.S.%2520government%2520may%2520grant,process%2520effective%2520May%252017%252C%25202023.) what the programs require. Various administrations have implemented such programs [126 times](https://www.cato.org/blog/126-parole-orders-over-7-decades-historical-review-immigration-parole-orders) over seven decades. None were found to have violated the law. Texas [sued](https://www.cato.org/blog/states-challenge-bidens-new-parole-program-will-they-stop-legal-migration) over these programs a year ago, but has [failed to convince](https://www.law360.com/articles/1715414/standing-questions-vex-judge-in-biden-parole-program-suit) arguably the most [right-wing district court judge](https://www.vox.com/policy-and-politics/2023/2/14/23597741/supreme-court-matthew-kascmaryk-judge-shopping-texas-utah-walsh-justice-department) in the state that it is correct.

**Throwing Spaghetti on the Impeachment Wall**

The second article of impeachment titled “breach of public trust” is a dumping ground of disconnected gripes. It charges, “Mayorkas is knowingly making false statements to Congress that the border is ‘secure,’ that the border is ‘closed,’ and that DHS has ‘operational control’ of the border.” The articles point to a 2006 statute that [defines](https://www.congress.gov/109/plaws/publ367/PLAW-109publ367.pdf) “operational control” to mean the “prevention” of every single illegal crossing. But that is such an over-the-top, unrealistic definition that Border Patrol internally [has used](https://oversightdemocrats.house.gov/sites/democrats.oversight.house.gov/files/2023-07-14.Democratic%20Member%20Memorandum%20re%20US%20Border%20Patrol%20Transcribed%20Interivews.pdf) [different definitions](https://www.gao.gov/assets/gao-09-824.pdf) for years.

Mayorkas [admitted](https://rollcall.com/2023/03/28/republican-senators-grill-dhs-chief-over-border-security/) that by the statute’s absurd standards, DHS lacks operational control. But by that standard, no administration has ever achieved control, including the Trump administration even though it too claimed it had. In Oct. 2020, it apprehended [72,000](https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters) for illegal entry, but allowed 20,006 known “gotaways”— successful covert entries. Yet it [declared](https://www.dhs.gov/news/2020/10/29/border-wall-system-deployed-effective-and-disrupting-criminals-and-smugglers) that its wall had “proved to be a critical component in gaining operational control of the border.” In 2021, when Mayorkas made similar claims, DHS estimated that it had interdicted [80.9%](https://www.dhs.gov/sites/default/files/2023-07/2023_0703_plcy_fiscal_year_2022_border_security_metrics_report_2021_data.pdf) of those attempting to cross illegally. (Only in 2019 has the border apprehension rate exceeded that mark.)

But House Republicans do not stop here with their bogus accusations. They make three more:

One: They claim that Mayorkas terminated “Remain in Mexico”—a Trump-era scheme to stick asylum seekers from various countries in Mexico to await a hearing for their asylum petition. The living conditions in this program were so bad—criminals and gangs [constantly preyed on the migrants](https://humanrightsfirst.org/wp-content/uploads/2023/02/PubliclyReportedMPPAttacks12.15.2020FINAL.pdf)—that many of them gave up and returned home to take their chances or tried to sneak into the U.S. illegally. Setting that aside, the fact is that this program [was initially suspended](https://www.dhs.gov/news/2021/01/20/dhs-statement-suspension-new-enrollments-migrant-protection-protocols-program) *before* Secretary Mayorkas was [even in office](https://www.politico.com/news/2021/02/02/mayorkas-confirmed-homeland-security-465036). Nor did ending this program make any difference to the border surge. In Jan. 2021, 33 people per day were being [sent](https://www.cbp.gov/newsroom/stats/migrant-protection-protocols-fy2021) to Mexico under the program. Next month, Mayorkas [was ejecting](https://www.cbp.gov/newsroom/stats/nationwide-encounters) three times as many under the public health expulsion authority, Title 42, every single *hour*. Why would using Remain in Mexico over Title 42 lead to more removals?

Moreover, Mayorkas regrettably reinstated the failed Remain in Mexico program from March 2022 to July 2022, something the impeachment articles fail to mention. Nor does it mention that that this made zero difference to the border surge. Indeed, border arrests increased significantly during that time, demonstrating that the program was having no deterrence effect. House Republicans must know that Mayorkas reinstated the program given that the articles cite the appeals court decision requiring him to do so. Yet that gives them no pause in going after him. The program was finally ended when the Supreme Court, overruling the appeals court, gave the [green light](https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf) to do so, all of which shows that Mayorkas at every point scrupulously obeyed the courts and stayed within the law.

Two: They also assert that Mayorkas caused the border crisis by canceling the construction of Trump’s border wall. But again, this decision was initially [taken](https://apnews.com/general-news-political-news-bc664278ac096e6ff878116034ec06bb) *before* Mayorkas assumed office. Moreover, it is extraordinarily strange to claim that canceling the construction of something that didn’t exist under either administration caused more illegal border crossings. All of Trump’s border wall is still there and is being cut through [nearly a dozen times per day](https://www.cato.org/blog/border-wall-was-breached-11-times-day-2022-2). The very roads that Trump constructed to build the wall in remote areas [are now being used by smugglers](http://web.archive.org/web/20210316142322/https:/www.nytimes.com/2021/03/16/us/border-wall-trump-biden.html?action=click&module=Top%2520Stories&pgtype=Homepage) to pick up people in previously inaccessible regions. The Great Wall of Trump cost $15 billion, and its main effect has been to cause numerous injuries to immigrants who fall climbing over it.

Three: They claim that Mayorkas “terminated asylum cooperative agreements” that allowed DHS to deport asylum seekers to third countries. But that accusation suggests a whole a new level of confusion because these agreements were either never implemented at all (as was the case with El Salvador and Honduras) or [suspended](https://www.hrw.org/report/2020/05/19/deportation-layover/failure-protection-under-us-guatemala-asylum-cooperative) during the Trump administration after the removal of just [945 people](https://www.foreign.senate.gov/imo/media/doc/Cruelty,%20Coercion,%20and%20Legal%20Contortions%20--%20SFRC%20Democratic%20Staff%20Report.pdf). More significantly, it was Secretary of State Antony Blinken who officially [terminated](https://www.state.gov/suspending-and-terminating-the-asylum-cooperative-agreements-with-the-governments-el-salvador-guatemala-and-honduras/#:~:text=Transfers%2520under%2520the%2520U.S.%252DGuatemala,the%2520U.S.%2520border%2520is%2520open.) these agreements, not Mayorkas.

**Truly Lawless: Mayorkas’ Predecessors**

Like Mayorkas, his predecessors in the Trump administration struggled to control illegal immigration. Border arrests in [December 2020](https://www.cbp.gov/newsroom/stats/migrant-protection-protocols-fy2021), Trump’s final full month, were at the highest level for any December since December 2000. Despite his immigration czar Stephen Miller’s unprecedented draconian tactics, there were more successful illegal entries that month than in any December since 2006. The administration was forced to release approximately [1.2 million border crossers](https://www.dhs.gov/immigration-statistics/special-reports/enforcement-lifecycle) because it did not have the capacity to detain them.

But they also struggled with following laws and the Constitution. Trump’s DHS Secretary Kirstjen Nielsen violated the constitutionally [protected due process](https://casetext.com/case/ms-l-v-us-immigration-customs-enforcement) rights of asylum-seeking parents when she took away their babies and toddlers with [no plan to reunite them](https://oversightdemocrats.house.gov/news/press-releases/trump-administration-briefings-reveal-no-plan-to-reunite-children-before) as part of the administration’s zero tolerance border approach. And then she [repeatedly lied](https://www.thenation.com/article/archive/kirstjen-nielsen-family-separation-perjury-merkley/#:~:text=The%2520specific%2520accusation%2520that%2520Nielsen,Gutierrez%2520(D%252DIL).) to Congress about the existence of family separation policy. She also [lied to Congress](https://gomez.house.gov/news/documentsingle.aspx?DocumentID=2144) that she wasn’t [illegally](https://casetext.com/case/al-otro-lado-inc-v-wolf-12) [obstructing families](https://www.cato.org/blog/officials-misled-congress-ignore-asylum-law-set-family-separations) from seeking asylum at lawful crossing points when indeed she was doing just that, as the DHS’s own Office of Inspector General itself [determined](https://gomez.house.gov/news/documentsingle.aspx?DocumentID=2144).

There’s more: The Government Accountability Office [found](https://www.gao.gov/products/b-331888) that the Trump’s DHS misspent funds meant for detainees on dog food and dirt bikes for Border Patrol agents instead—in direct violation of congressional intent. Also in open defiance of Congress, Trump [illegally](https://wp.api.aclu.org/wp-content/uploads/2019/03/2023.07.17-Border-Wall-Settlement-Agreement.pdf) transferred money earmarked for the Department of Defense to build a wall.

A comprehensive list of all of Trump’s illegal actions on immigration would be as long as the Great Wall that Trump wanted to build, but here are just a few examples of his administration’s utter contempt for the law. It:

- [Unconstitutionally](https://www.americanimmigrationcouncil.org/sites/default/files/litigation_documents/doe_v_johnson_findings_of_fact_and_conclusions_of_law.pdf) detained immigrants in horrific conditions and then [ignored](https://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/15/17-56297.pdf) orders requiring the humane detention of children.
- [Violated](https://casetext.com/case/e-bay-sanctuary-covenant-v-barr-3) [the law](https://casetext.com/case/al-otro-lado-inc-v-wolf-12) by attempting to eliminate the right to request asylum along the southwest border.
- Failed to follow proper administrative procedures before ending the Obama-era DACA program that allowed Dreamers—those who have grown up in the United States after being brought to the country as minors without proper authorization—temporary legal status. (Trump DHS initially [ignored](https://www.npr.org/2020/07/15/891563635/trump-administration-rejects-1st-time-daca-applications-violates-scotus-order#:~:text=Live%2520Sessions-,Despite%2520Supreme%2520Court's%2520Ruling%2520On%2520DACA%252C%2520Trump%2520Administration%2520Rejects%2520New,last%2520month's%2520Supreme%2520Court%2520order.) the decision, issued by Chief Justice John Roberts, for weeks, absurdly [stating](https://www.govinfo.gov/content/pkg/CHRG-116hhrg45554/html/CHRG-116hhrg45554.htm) that it didn’t have the “resources” to update its website.)
- Illegally [denied](https://casetext.com/case/young-v-trump-2) [visas](https://casetext.com/case/na-of-mfrs-v-us-dept-of-homeland-sec) to tens of thousands of legal immigrants in 2020 as part of a plan that slashed visa issuances 80%.
- Withheld law enforcement [grants](https://s3.documentcloud.org/documents/4442341/Sessions-ca7-20180419.pdf) to “sanctuary cities” which courts repeatedly [said](https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf) it cannot legally do.

Mayorkas has made his share of mistakes. But they are nothing compared to the deliberate and lawless campaign to destroy the immigration system that his predecessor engaged in. Illegal immigration is so high because [legal immigration is effectively impossible](https://www.cato.org/policy-analysis/why-legal-immigration-nearly-impossible) for migrants coming from the southern border. But the Trump administration’s actions made it even harder, something that has no doubt contributed to the current crisis. If anything, Mayorkas has used his authority more than anyone else to fix things, though, obviously, it is not enough.

Impeachment shouldn’t require a criminal act, but describing Mayorkas’ lapses as a “high crime” or “misdemeanor” stretches those terms beyond [any reasonable interpretation](https://www.cato.org/sites/cato.org/files/pubs/pdf/gene-healy-indispensable-remedy-white-paper.pdf).

##### About the Author 

[![David J. Bier](/sites/cato.org/files/styles/author_picture/public/2021-01/David%20Bier.jpg?itok=orT_ECKQ)](/people/david-bier) 

##### [David J. Bier](/people/david-bier)

Director, Immigration Studies, and The Selz Foundation Chair in Immigration Policy, Cato Institute

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