A “habitual disregard of the public interests”?

Last Wednesday, the House Committee on Homeland Security approved two articles of impeachment against Alejandro Mayorkas, President Biden’s Homeland Security Secretary. Historically, the full House following the committee’s vote would be extraordinary. Only once has a cabinet official been impeached—Secretary of War William Belknap in 1876.

The articles accuse Mayorkas of violating the guarantee to states against invasion found in Article IV of the Constitution. It also declares that Mayorkas violated laws passed by Congress about border security against illegal immigration by insufficiently enforcing them.

No reasonable observer of the situation can deny the crisis engulfing our southern border. Even The New York Times has admitted the problem and even given serious blame to the Biden Administration for the current state of affairs. But should Congress’s response include impeaching and removing Secretary Mayorkas?

The answer depends on how we understand two constitutional provisions. First, the accusation that Mayorkas violated Article IV depends on the definition of “invasion.” The term normally has described military units organized by one political community, sent into the sovereign territory of another, for purposes of pursuing certain political and/or economic goals by violent means. Illegal immigration certainly violates our sovereignty in persons entering our country contrary to our laws. Some entering, legally and illegally, also engage in human or drug trafficking, both evils that do tremendous damage to individuals and communities in the United States. But calling it an “invasion” as Article IV intends the term seems like a stretch. It takes a word as used for an evocative talking point today and tries to make it replace the historic, more precise meaning.

The claim that Mayorkas’ systemic failure to adequately enforce immigration law involves a different constitutional question. As an executive officer, he is required to enforce the law. As Homeland Security secretary, Mayorkas holds the particular duty of enforcing immigration laws. That the national government has failed to administer these laws with anything approaching adequacy is plain.

The real issue concerns whether Mayorkas’ deep, pervasive failure on this core executive duty involves an impeachable offense. The Constitution says government officials, including cabinet secretaries, can be impeached, convicted, and removed for “Treason, Bribery, or other high Crimes and Misdemeanors.” Exactly what kinds of infractions do these terms encompass?

One camp, including some well-known contemporary scholars, sees this list as only pertaining to committing crimes, to specific violations of existing law. Justice Joseph Story (1779-1845) took a different view in his Commentaries on the Constitution of the United States, a work that became among our most influential 19th century discussions of the Constitution.

Story in his Commentaries agreed that direct violations of existing law fell within the scope of impeachments. But he then declared that the impeachment power, “has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office.” Story gave this more expansive scope for impeachable offenses as a reason for placing the power in Congress and not the courts. Courts were constructed and judges trained to parse out whether persons broke the law. Legislators could better assess impeachable offenses that came from failures other than strict violations of laws.

Here Republicans do run into some trouble. During President Trump’s two impeachments, many of them claimed that the Constitution only envisioned impeachment for actual crimes. If they maintain that position in this instance, then the articles against Mayorkas look rather weak. No one can claim the national government is not enforcing any immigration laws. Proving under-enforcement of the law as a criminal act, even grossly doing so, is hard. Finding an objective standard on this matter has bedeviled our system at least since Reconstruction, when many states systemically failed to enforce laws protecting African Americans from private violence. It is hard due to the many calculations law enforcement makes every day across the country on how to use limited time, personnel, and other resources. And without a clear legal rule, government officials could face charges against them based on all sorts of policy or even personality differences if such a precedent worked.

Yet, if Story is correct, then Mayorkas’ accusers need not prove the secretary under-enforced the law so extensively as to break that law. They instead can give evidence that Mayorkas engaged in “gross neglect,” a “habitual disregard of the public interests” and other forms of what Story elsewhere called “maladministration.” That line of accusation has much, much greater support.

Mayorkas has defended himself by passing the blame, arguing that Congress has not given sufficient authority and resources needed for more vigorous law enforcement. This claim has serious flaws as the plain text of existing immigration law gives the executive branch significantly more power to act without additional congressional legislation. But let the opposing arguments have their chance to persuade according to the due process established for impeachments by the Constitution. And be consistent in how the law—including the scope of impeachment—is understood, whether it is a Biden administration progressive or a Republican president.

In the end, these questions matter because the constitutional issues of impeachment and the legal matters of border enforcement have the same foundation. In principle, we live under and govern according to law. We act, privately and publicly, according to the rule of law. The House seeks to hold the Biden administration accountable for not following the law. In those actions, they must be careful to not do the same.