Senate Democrats this week faced a test of whether they take the laws they pass seriously. Like their counterparts in the House, they failed.
Homeland Security Secretary Alejandro Mayorkas was only the second cabinet secretary ever to be impeached, the first being in 1876. House Republicans passed the bill of impeachment on a purely party-line vote. They were right to do so, even though they understood from the outset that the Democratic majority in the Senate precluded a conviction. The impeachment was legally proper because Mayorkas committed high crimes and misdemeanors. It was politically prudent because it gave Republicans a chance to lay out their case before the public on the Biden administration’s flagrant lawlessness at the border. And it was restrained: Everything Mayorkas did was authorized or ratified by the White House, but Republicans chose to impeach only the Senate-confirmed Mayorkas and not the elected president. They could justly have done both.
Mayorkas’s conduct has been egregious. He has ignored federal statutes requiring that illegal immigrants be detained until they are removed, given asylum, or otherwise legally adjudicated. He has twisted the definitions of legal status and incoherently extended protected status to 700,000 Venezuelan migrants. He has overseen the administration’s insistence that Texas may neither exercise its own sovereignty at the border nor insist that the laws of the nation be enforced. He has handed out meaningless court dates, sometimes a decade in the future, as a substitute for enforcement today. It is ironic that the Senate took the same approach, first delaying action against Mayorkas and then dismissing all charges out of hand.
The House charged Mayorkas with “willful and systemic refusal to comply with the law” in disregard of seven different enumerated statutory requirements and with a “breach of the public trust” for false statements to Congress and obstruction of congressional oversight. Yet, every member of the Senate Democratic caucus — including embattled red-state incumbents such as Jon Tester and Sherrod Brown — voted to dismiss the charges without a trial. Chuck Schumer’s motion to dismiss the impeachment contended that the charges do not “allege conduct that rises to the level of a high crime or misdemeanor,” and Schumer argued that they described only “policy disagreements.” In other words, rather than try the evidence and dispute the facts, Schumer’s position is that even if it is true that Mayorkas refused entirely to enforce federal law and misled Congress about it, this is within the acceptable range of behavior by executive officers.
The Framers did not intend mere “maladministration,” in the sense of bad policy or incompetence, to be impeachable. But what Mayorkas has done goes well beyond that: It is flagrant, deliberate nullification of Congress’s power to make law. It undermines the entire constitutional design in which the people’s democratically elected representatives decide what the law is, and the executive carries it out. Mayorkas took an oath to uphold the Constitution and discharge the duties of his office. He has violated that oath and treated it with contempt. And Senate Democrats have declared that the only remedy anyone has for this lawlessness is to elect Donald Trump. They should be careful what they invite.
The party-line vote by Schumer’s caucus will only embolden this administration’s view that laws are just suggestions to an all-powerful executive branch. It represents an abdication that further diminishes the role of Congress in our system of government to mere commentators. We think the Constitution demands more than that.