Mayorkas Is Not the Right Target for Impeachment over the Border….That person is President Biden. Andrew McCarthy
There is one official in the United States who has the undeniable statutory and constitutional authority to end the border catastrophe — for which that official is wholly responsible. That official is not Homeland Security secretary Alejandro Mayorkas. It is President Joe Biden. This is not to say Mayorkas is undeserving of the impeachment that House Republicans approved on Tuesday — only after losing a similar, party-line squeaker last week in a fit of incompetent vote-counting. But since this is merely a gesture — since there is not the slightest possibility that the Democrat-controlled Senate is going to convict and remove high-ranking Biden administration officials for carrying out Biden policy Democrats support — why not aim the gesture at the right target?
Like many of us, I’ve been ambivalent about the Mayorkas-impeachment gambit. Notwithstanding the ill-informed insistence of Representative Ken Buck (R., Colo.) in a National Review column this week, there’s no real doubt that the willful failure to secure the border is an impeachable offense, and that Mayorkas has willfully failed to secure the border, his main job. Nevertheless, in my 2014 book on impeachment, Faithless Execution, in discussing the debates that led to the congressional impeachment power that Madison regarded as “indispensable,” I made much — because the Framers had made much — of the interplay between impeachment and the constitutional concept of the unitary executive.
The late, great Justice Antonin Scalia explained the moorings of the unitary executive in his famous Morrison v. Olson dissent. The Framers strove for political accountability. Scalia quoted Hamilton (from Federalist No. 70): “The ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility” (emphasis added). As the justice elaborated,
The President is directly dependent on the people, and, since there is only one President, he is responsible. The people know whom to blame, whereas [quoting Hamilton again] “one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults and destroy responsibility.”
That is what the sprawling executive branch, amid the massive modern administrative state, does: It creates so much “plurality,” installs so many underlings, that the chief executive responsible for it all can hide — can distance himself from his own failed policies and any resulting catastrophes. That’s not what the Framers contemplated. In Morrison, Scalia continued, in a passage quoted by the D.C. Circuit in last week’s immunity ruling, “The Founders envisioned when they established a single Chief Executive accountable to the people [that] the blame can be assigned to someone who can be punished.”
That someone is the president, not the Department of Homeland Security secretary, insidious as he may be.
Mayorkas is carrying out President Biden’s policies, not making his own. Somewhere between 6 to 8 million illegal aliens have entered the United States since January 2021. Yet the administration persists in policies that will encourage millions more to crash the gates. The health-care, education, law-enforcement, and social-service apparatuses in cities and states across the country are crumbling under the strain. So yes, absolutely, every official with a meaningful hand in designing and executing Biden’s policies should be impeached and removed.
But not in lieu of Biden.
Don’t think that this is lost on House Republicans. These are the same Republicans who, day in and day out, fill the airwaves with diatribes against President Biden’s weaponizing of the criminal-justice system against former president Trump. Now hold on a second, you must be muttering. Isn’t Trump being federally prosecuted, not by Biden, but by Attorney General Merrick Garland? In fact, it’s not even Garland, right? After all, didn’t he, in turn, appoint a special counsel, Jack Smith, who has no connection to Biden — who wasn’t even nominated to a senior-executive-officer position by the president, much less confirmed by the Senate? What does that have to do with Biden?
Everything, of course.
This is exactly what Scalia was talking about in Morrison, which involved the constitutional infirmities of the independent-counsel statute, the forerunner of today’s special-counsel regulations. In the case of Jack Smith, the scheme to obfuscate Biden’s involvement couldn’t be more obvious. There was no basis for appointment of a special counsel; indeed, Garland and the Biden Justice Department were investigating Trump for nearly two years before Smith’s appointment precisely because there is no conflict of interest in the Biden Justice Department’s investigating the opposition party (the conflict would lie in the Biden Justice Department’s investigation of Biden and his family, but on that matter, Garland declined to appoint a special counsel until his obstinacy became politically untenable after the failed Hunter Biden sweetheart plea deal).
Biden and Garland knew Trump, in the context of the 2024 political campaign, was going to accuse them of leveraging the executive’s police power against a political nemesis. Hence, to camouflage Biden’s connection to that enterprise, Garland appointed a special counsel who, he maintains, is wholly independent of the White House and insulated from supervision by the Justice Department.
It’s a fraud. Smith has no power of his own. He is a delegate who exercises power that belongs solely to Biden. He does so as a subordinate of Biden’s appointed attorney general, and he is bound to adhere to Biden Justice Department policies. The buck doesn’t stop with Smith, or even Garland. The buck on the Trump federal prosecutions stops with Biden. Without the authority the Constitution vests in Biden, there could be no special counsel Smith. If Smith were not doing what Biden wanted done, Biden could remove him this instant, without cause. Indeed, reporting last week said the quiet part out loud: Biden is angry with Garland because Smith has not yet gotten Trump tried and convicted. That’s the Biden campaign strategy.
I’m a fan of Ken Buck, and of Representative Mike Gallagher of Wisconsin. Congress will be an even more dysfunctional place when they step aside at the end of their terms, as they’ve announced they will do. Buck’s opposition to Mayorkas’s impeachment has been clear for a while; Gallagher appears to have surprised his fellow Republicans by voting against impeachment last week. They both stayed consistent in voting against it again this week, when the secretary was finally impeached. I applaud them for honorable, conscientious votes. And to be sure, much of what Gallagher, in particular, said in explaining his rationale was unassailable. The move to impeach Mayorkas failed to “hold Mr. Biden accountable.”
Furthermore, Gallagher correctly contended, the impeachment gambit was exactly the kind of “hyperpartisan process” that Republicans inveighed against when Democrats did it to Trump (at least in 2019), and more to the point, the kind of process that the Framers undertook to prevent. The point of the daunting two-thirds supermajority requirement for conviction and removal in a Senate impeachment trial is to ensure that impeachment is reserved for conduct so egregious it generates a public consensus. That alone can drive a bipartisan consensus of politically accountable senators to conclude that the impeached official is unfit to be trusted with power. The idea is that if it is inconceivable that an official, especially the president, will be convicted in the Senate, there is no point in the House’s approving articles of impeachment in the first place. Doing so on partisan lines is apt to undermine impeachment’s vital function in our constitutional framework — a point Buck correctly presses in his column.
But where Gallagher and Buck are dead wrong is in claiming that serious derelictions of duty and reckless incompetence do not rise to the level of impeachable offenses, and that impeachment requires proof that the official committed a crime. High crimes and misdemeanors (along with treason and bribery, the predicates for impeachment) need not be penal offenses (which is why Gallagher is wrong to cite the 2021 impeachment of Trump as unsupported by a “crime”).
In the main, penal offenses are private wrongs committed by non-officials. They are addressed in the court system, which affords lavish legal protections to the accused because the proceedings are about deprivation of constitutional rights — liberty, property, even life if the offense is grave enough. Impeachment, in stark contrast, involves public wrongs committed by officials endowed with governmental authority. As Hamilton famously put it (in Federalist No. 65):
The subjects of [impeachment’s] jurisdiction are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Impeachment is not about the deprivation of constitutional rights; it is about the stripping of political authority — a privilege, not a right — from an official unfit for that public trust. As a highly accomplished marine intelligence officer and scholar, Representative Gallagher will appreciate that impeachable offenses are more resonant of military than civilian justice. That is, “high crimes and misdemeanors” are more in the nature of dereliction of duty and abuse of power than of penal-law felonies or petty offenses.
It is true enough, as Buck suggests, that the Framers considered but opted against using the term maladministration before settling on high crimes and misdemeanors (which the legendary parliamentarian and political philosopher Edmund Burke lodged against Warren Hastings in the British impeachment that occurred roughly contemporaneously with the drafting of the Constitution). Nevertheless, perilous maladministration was what they were aiming at. They eschewed not the concept of maladministration but the word because they feared it would sweep in trivial acts of incompetence and lapses of judgment; but that doesn’t mean that serious acts of maladministration, threatening national security, do not meet the threshold.
That’s common sense. A president who corruptly grants a pardon, for example, has engaged in a discretionary executive act as to which court prosecution is almost certainly not an option. The act, however, is impeachable. A president who willfully serves the interests of a hostile foreign power to the detriment of American national security — the scenario that most troubled the Framers as they considered including an impeachment power — has committed an impeachable offense. Since without enforceable borders we would not have a nation, since the executive branch has attempted to usurp the sovereign right of the states to exclude illegal intruders, and since protecting the states from invasion and other foreign threats is an explicit constitutional duty of the federal government (see art. IV, §4), the federal officials responsible for the willful evisceration of border security have committed impeachable offenses. Whether such episodes can also be prosecuted by law — whether there is sufficient admissible evidence to convict — is irrelevant. Furthermore, the fact that such appalling derelictions of duty might in some abstract way be described as “maladministration” is no more germane than that a management team’s steering a multi-national corporation to financial ruin might euphemistically be described as “subpar bookkeeping.”
Wisely, because the assessment of whether conduct could and should be the subject of impeachment is not amenable of an exacting legal standard, the Framers made it a political question. The matter is committed to the House of Representatives and unreviewable by the courts. The judgment of the House is assumed to reflect the sensibilities of the people. In exercising their judgment, representatives — trusted, politically accountable public officials — are supposed to heed the rigorous standard for conviction by the Senate; that should make frivolous, nakedly partisan impeachment a nonstarter.
Does that mean there should never be an impeachment on party lines? Of course not. Most presidential-impeachment pushes are unabashedly driven by the opposition party even if they are not straight partisan votes. One party may abdicate its constitutional responsibilities, as Democrats have with border security. Their obstinacy is not a license for passivity in defense of the nation. Even if unsuccessful, an impeachment vote holds them accountable.
Similarly, there can be no hard and fast rule that impeachment should never be invoked when Senate conviction is unlikely — even, as here, inconceivable. It is just as wrong for the Senate to abdicate its responsibility to convict an official whose grievous wrongs truly merit impeachment as it is for the official to be grievously derelict. An impeachment trial rivets the nation’s attention on the misconduct cited by the House. If the misconduct is sufficiently condemnable, it warrants the public’s attention, and senators should be accountable for excusing it; if it is frivolous, then the representatives who advocated it should be accountable.
Again, these are all political calculations about what’s realistically achievable and whether it advances or detracts from the national interest. Reasonable minds can differ on them. I have no reproof for representatives who are doing what’s in their power to protect the country, but who conclude than an impeachment should not go forward — either because the effort undermines our Constitution’s objective to hold the chief executive accountable, or because there is no plausible chance of conviction.
Nevertheless, we should be applying the correct constitutional guidance. Willfully failing to secure the border, particularly while blocking the states from their sovereign right of self-defense from intruders, is an impeachable offense. Is it also a penal crime? I’m not sure — there is certainly a case for exploring whether Biden administration officials such as Mayorkas are violating the civil-rights laws (especially as the Biden Justice Department has creatively expanded those laws to impose novel duties on municipal police officers throughout the country). But that’s beside the point. Impeachment is the Constitution’s option for stripping political authority from officials who engage in profound derelictions of duty and abuses of power. An executive official who so engages is impeachable and removable, regardless of whether he is also indictable and convictable.
That said, the Constitution’s endowment of executive power in a single official, the president, is meant to ensure that the president cannot hide from the dire consequences of his derelict policies. How is it conceivable that Republicans went through the pains of approving an impeachment inquiry against Biden and yet, when it comes to Biden’s most egregious impeachable conduct, they’ve cited Mayorkas?
Author’s note: I’ve corrected the column to reflect that Morrison v. Olson involved the independent-counsel statute, the forerunner of today’s special-counsel regulations.
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