Mayorkas Impeachment Vote: Republican Impeachment of Mayorkas Fails (2024)

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Here’s the latest on the impeachment vote.

In an extraordinary and chaotic scene on the House floor, Republican leaders at first seemed to have clinched a victory, despite three G.O.P. defections by Representatives Ken Buck of Colorado, Mike Gallagher of Wisconsin and Tom McClintock of California — only to have it slip through their grasp when Representative Al Green, a Texas Democrat recovering from abdominal surgery, showed up in his hospital garb to vote.

Republican leaders held the vote open for several minutes, scrambling to corral the necessary support for the charges as Democrats jeered and yelled “Order! Order!” and the tally hovered at a tie. In the end, they could not overcome the opposition, and the measure failed by a vote of 216 to 214.

Last week, the House Homeland Security Committee approved two articles that charged Mr. Mayorkas with refusing to comply with the law and breaching the public trust. But it was only over the past few weeks that Republican leaders, under pressure from the hard right, rushed the impeachment through the committee and to the floor — without ever ensuring they had the requisite support to pass it given their minuscule House majority.

There were signs leading up to Tuesday’s vote that the outcome was in doubt. As it drew near, some Republicans began airing their reservations about impeaching a cabinet secretary for carrying out the policies of the administration he serves.

“Secretary Mayorkas is guilty of maladministration of our immigration laws on a cosmic scale, but we know that’s not grounds for impeachment, because the American founders specifically rejected it,” Mr. McClintock said on the House floor, explaining his opposition to the charges. Cabinet secretaries, he added, “can be impeached for committing a crime relating to their office, but not for carrying out presidential policy. This border crisis can’t be fixed by replacing one left-wing official with another.”

Mr. Buck had signaled for weeks that he opposed the move. And other Republicans, including Mr. Gallagher, had expressed concerns to their colleagues privately but refused to publicize how they would vote.

Their opposition put them in line with Democrats, former secretaries of homeland security and constitutional law experts — including several conservatives — who had condemned the charges. They argued that Republicans were trying to spin a policy dispute into a constitutional indictment, with no evidence that Mr. Mayorkas’s conduct rose to the level of high crimes and misdemeanors.

“We have serious problems at the border — no one denies that — but these are not serious people,” said Representative Adam B. Schiff, Democrat of California and a lead prosecutor during the House Democrats’ first impeachment of former President Donald J. Trump. “This impeachment is baseless, it is unconstitutional and it should be defeated.”

Republicans’ failed effort at impeachment in the House unfolded as they cheered on the demise of a Senate effort to pass a bipartisan national security supplemental package that would crack down on border crossings. For weeks, Mr. Johnson has been warning that the Senate bill, which Mr. Mayorkas helped to negotiate, would be dead on arrival in the House. That dissuaded many Senate Republicans from supporting the measure, which was expected to fail in a test vote on Wednesday.

Democrats, accusing Republicans of taking their marching orders from Mr. Trump, warned that G.O.P. members would suffer political consequences for trying to impeach Mr. Mayorkas, which they said amounted to pursuing a political vendetta, instead of working on bipartisan legislation to improve border security.

“You really want to impeach Joe Biden, but you realized that that is politically unpopular,” Representative Hakeem Jeffries, Democrat of New York and the minority leader, said on the floor.

“You will live with this like a scarlet letter,” he told Republicans, adding that Mr. Mayorkas should treat the impeachment “like a badge of honor because it’s worthless, it means nothing, it’s fake, it’s fraudulent and it’s foolish.”

It was unclear how Republicans planned to regroup after the defeat, given how much capital leaders had placed on pursuing the impeachment charges — and how politically important the issue of the border is expected to be for the G.O.P. in an election year.

As of late Tuesday night, House Republican leaders had not given up on impeaching Mr. Mayorkas, and were making plans at a second attempt in the near future. But the only likely way to achieve a different outcome would be if Representative Steve Scalise, Republican of Louisiana and the majority leader who is going through cancer treatment and missed Tuesday’s vote, is present.

“This is not the end of our efforts to hold Secretary Mayorkas accountable,” Representative Mark E. Green, Republican of Tennessee and the chairman of the Homeland Security Committee, said in a statement late Tuesday. “I look forward to Leader Scalise’s return.”

At the tail end of the vote, Representative Blake D. Moore, Republican of Utah, switched his vote to “no” and then moved to reconsider the matter, which would allow leaders to bring it up again at another time.

“The truth is, the extreme MAGA Republicans running the House of Representatives don’t want solutions, they want a political issue,” Representative Bennie Thompson of Mississippi, the top Democrat on the homeland security panel, said on the floor. Mr. Thompson denounced the Mayorkas impeachment as a ploy “to distort the Constitution and the secretary’s record to cover up their inability and unwillingness to work with Democrats to strengthen border security.”

Critics of the case pointed out that trying to remove the secretary was unlikely to bring about a change in the Biden administration’s border policies, and would not suddenly equip officials with the powers and resources they needed to do a more effective job at carrying out the nation’s border enforcement laws.

On Tuesday, a bipartisan group of three former secretaries of homeland security — Michael Chertoff, who served under President George W. Bush, and Janet Napolitano and Jeh Johnson — admonished Republicans for focusing on impeachment instead of working to pass laws to improve the border.

“Impeaching Secretary Mayorkas solves nothing and leaves our outdated immigration system exactly where it is now — broken,” they wrote. “We urge you to set aside this groundless impeachment effort and get back to solving America’s real problems.”

Their argument that removing Mr. Mayorkas from office would do little to remedy the problems at the border seemed to resonate even with some of the Republicans who voted in favor of impeaching him.

“Today we are in fact impeaching a pawn,” Representative Darrell Issa, Republican of California, said of Mr. Mayorkas on the floor, adding, “He is just part of the high crimes and misdemeanors of the president of the United States.”

The first article of impeachment accused Mr. Mayorkas of replacing Trump-era policies, such as the program commonly called Remain in Mexico, which required many migrants to wait at the southwestern border for their immigration court dates, with “catch and release” policies that allowed migrants to roam free in the United States. Republicans charged that Mr. Mayorkas ignored multiple mandates of the Immigration and Nationality Act, which states that migrants “shall be detained” pending decisions on asylum and removal orders, and acted beyond his authority to parole migrants into the country.

Democrats pushed back forcefully, noting that Mr. Mayorkas, like previous homeland security secretaries, had the right to set policies to manage the waves of migrants arriving at the border. That includes allowing certain migrants into the country temporarily on humanitarian grounds and prioritizing which migrants to detain, particularly when working with limited resources.

The second article accused Mr. Mayorkas of breaching the public trust by misrepresenting the state of the border, and stymieing congressional efforts to investigate him. Republicans base those accusations on an assertion by Mr. Mayorkas in 2022 that his department had “operational control” over the border, which is defined under a 2006 statute as the absence of any unlawful crossings of migrants or drugs. Mr. Mayorkas has said he was referring instead to a less absolute definition used by the Border Patrol.

They also accuse Mr. Mayorkas of having failed to produce documents, including materials he was ordered to give them under subpoena, during an investigation into his border policies and evading their efforts to get him to testify as part of their impeachment proceedings. Administration officials have countered that Mr. Mayorkas has produced tens of thousands of pages of documents in accordance with the panel’s requests. He offered to testify in person, but Republicans on the panel rescinded their invitation for him to appear after the two sides encountered scheduling problems.

Drivers of the impeachment effort nonetheless sought to heap blame at Mr. Mayorkas’s feet during the floor debate on Tuesday.

“He’s guilty of aiding and abetting the complete invasion of our country by criminals, gang members, terrorists, murderers, rapists and over 10 million people from 160 countries into American communities all across the United States,” Representative Marjorie Taylor Greene, Republican of Georgia, said on the floor, in one of the most incendiary statements of the debate.

A spokeswoman for the Department of Homeland Security excoriated those attacks and the entire impeachment venture as pointless.

“This baseless impeachment should never have moved forward,” said the spokeswoman, Mia Ehrenberg, adding, “If House Republicans are serious about border security, they should abandon these political games and instead support the bipartisan national security agreement in the Senate.”

Luke Broadwater and Catie Edmondson contributed reporting.

What’s next in the Mayorkas impeachment?

The day after President Johnson was impeached, in February 1868, the articles of impeachment were delivered to the Senate by Representative Thaddeus Stevens, Republican of Pennsylvania. Mr. Stevens was so ill that he had to be carried through the Capitol.

Once the articles are delivered, the Senate, acting as a High Court of Impeachment, would schedule a trial during which senators would consider evidence, hear witnesses and, ultimately, vote to acquit or convict. They could also vote to dismiss the charges.

The Senate trial

The House speaker names impeachment managers from the chamber who would be tasked with arguing the case against the impeached official, serving as the prosecution team in the Senate trial.

In the case of Mr. Mayorkas, the impeachment articles also appoint 11 impeachment managers. The group includes Representatives Mark E. Green of Tennessee, the chairman of the Homeland Security Committee that drew up the charges, and Representative Marjorie Taylor Greene, Republican of Georgia, who has led the drive to seek his removal. Also part of the team are Representatives Andy Biggs of Arizona, Ben Cline of Virginia, Clay Higgins of Louisiana, Andrew Garbarino of New York, Michael Guest of Mississippi, Harriet M. Hageman of Wyoming, Laurel Lee of Florida, Michael McCaul of Texas and August Pfluger of Texas.

The Biden administration would have the right to have an agent or attorney appear to answer for the articles of impeachment against Mr. Mayorkas. That includes appointing House Democrats to serve on the defense team.

In a trial, senators would sit as a jury in judgment of Mr. Mayorkas. For many, it would be the third impeachment trial they would sit through, after two consecutive impeachment trials of former President Donald J. Trump, in 2020 and 2021. Eventually, senators would take a vote on the charges. They could agree to dismiss the articles or render a verdict.

The verdict

If a trial moves forward without the charges being dismissed, a two-thirds majority would be required to convict and remove Mr. Mayorkas, an exceedingly unlikely outcome given that Democrats control the Senate. Democrats have the majority, holding 48 seats and the votes of three independents who caucus with them. Senate Republicans are in the minority, controlling 49 seats. If Democrats held together in support of him, Mr. Mayorkas would be acquitted even if every Republican voted to convict.

If he were to be found guilty, according to Article II, Section Four of the Constitution, Mr. Mayorkas would be removed from his position and the Senate could vote to bar him from being able to hold office again.

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Impeachment was once rare and serious. It’s becoming a tool in partisan fights.

Indeed, threats of impeachment have become a favorite pastime for Republicans following the lead of former President Donald J. Trump, who has pressed his allies for payback for his own two impeachments while in office. The chances of Mr. Mayorkas, much less Mr. Biden, ever being convicted in the Senate, absent some shocking revelation, seem to be just about zero, and the others appear in no serious danger even of being formally accused by the House.

But impeachment, once seen as perhaps the most serious check on corruption and abuse of power developed by the founders, now looks in danger of becoming a constitutional dead letter, just another weapon in today’s bitter, tit-for-tat partisan wars. Mr. Trump’s two acquittals made clear that a president could feel assured of keeping his office no matter how serious his transgressions, as long as his party stuck with him, and the impeachment-in-search-of-a-high-crime efforts of the Biden era have been written off as just more politics.

“Impeachment has become more of a political and public relations tool than a serious mechanism of executive branch accountability,” said Jack Goldsmith, a Harvard Law School professor and a former top Justice Department official under President George W. Bush. “It is of a piece with the decline of norms across Washington institutions and the ever-rising weaponization of legal tools to harm political opponents.”

In crafting the Constitution, the framers opted to include an impeachment clause to prevent the despotism Americans had just freed themselves from in the Revolution. At first, they decided that presidents and other officers could be subject to impeachment by a majority in the House and conviction by a two-thirds majority in the Senate for “treason or bribery.”

George Mason thought that was too limited and proposed adding “maladministration” as an impeachable offense, meaning incompetence. But James Madison objected, deeming it too broad and arguing that it would make the president subject to the whims of the Senate. Mason backed down but then proposed as an alternative the phrase “or other high crimes and misdemeanors.”

It was elegant, but the framers did not define it precisely. Alexander Hamilton made clear that the phrase meant offenses that “relate chiefly to injuries done immediately to the society itself” — in other words, not any old crime would be impeachable, but only those that were an offense against the people or the system.

It was meant to be rare and for decades it was. Only 21 times has the House voted to impeach a government official, and only eight times has the Senate convicted and removed them from office, all of them judges who otherwise had life tenure. The only other cabinet official targeted for impeachment, William Belknap, the war secretary under President Ulysses S. Grant accused of corruption, resigned tearfully minutes before the House took up his case in 1876, but lawmakers voted to impeach him anyway.

It was so rare that no president was impeached until 1868, when President Andrew Johnson came within one vote of being convicted in the Senate. It took 130 years for there to be another presidential impeachment, against Bill Clinton, who was also acquitted, and just 21 years passed between the second presidential impeachment and the third, involving Mr. Trump.

A little over a year passed between the third and the fourth, when Mr. Trump was impeached a second time. If the House impeaches Mr. Biden, there will have been three presidential impeachments in five years — more than in the previous 230 years of the republic combined.

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In a statement just released by his office, Johnson blamed Democrats for torpedoing the Israel aid bill, saying putting a clean bill — not conditioned on any spending cuts — was “a major concession we were willing to make given the gravity of situation.”

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Passage of this bill requires two-thirds approval, because Johnson used a special expedited procedure to advance it.

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If this stays a tie, impeachment fails. A tie is a loss.

Democrats now booing loudly because Republicans won’t close the vote

Al Green of Texas, incidentally, was the first House Democrat to try to impeach Trump, way back in the day. So this quite the story arc for him.

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Gallagher, a Wisconsin Republican who represents the district that is home to Lambeau Field in Green Bay, was not widely discussed as a possible no in the days leading up to this vote. About 15 Republicans have still yet to vote.

In a closed-door meeting this morning, Gallagher had expressed misgivings about the precedent this impeachment would set for future cabinet secretaries.

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Democrats, constitutional scholars and some of his predecessors reject the case against Mayorkas.

The G.O.P. contends that the secretary’s failure to uphold certain aspects of immigration law is itself a constitutional crime. But the president and his administration have wide latitude to control the border, and Mr. Mayorkas has not exceeded those authorities.

Still, Republicans insist they are within their rights under the Constitution to hold Mr. Mayorkas personally responsible for policy failures at the border.

“For three years, Secretary Mayorkas has willfully and systemically refused to comply with the laws enacted by Congress,” Representative Mark E. Green, Republican of Tennessee and the chairman of the Homeland Security Committee, said in a statement after the Homeland Security Committee approved the impeachment articles.

“Make no mistake, Secretary Mayorkas’s lawlessness is exactly what the framers of our Constitution designed impeachment to remedy. The historical record makes it clear — Congress holds impeachment power to hold accountable public officials who refuse to do their duty, and to deal with grave harms to our political order.”

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There are major holes in the impeachment case against Mayorkas.

The G.O.P. argues that the secretary’s failure to uphold certain aspects of immigration law is itself a constitutional crime. But in the United States, the president and his administration have wide latitude to control the border, and Mr. Mayorkas has not exceeded those authorities.

Here’s a look at the holes in the impeachment case against him.

The government has broad authority over how and when to detain migrants.

The impeachment articles that the committee approved accuse Mr. Mayorkas of flouting several provisions of the Immigration and Nationality Act that say deportable migrants “shall be detained” until they can be removed from the country. The articles charge that the secretary pursued a “catch and release” scheme to allow inadmissible migrants into the United States, knowing that it would be difficult or even impossible to ensure they would later appear in immigration court for removal proceedings.

What the charges do not take into account, however, is that Mr. Mayorkas also has the legal authority to determine which migrants to prioritize for detention, given limited bed space and long backlogs in the immigration courts.

“Congress loves passing laws that are impossible to execute,” said Aaron Reichlin-Melnick, the policy director at the American Immigration Council, adding that enforcing detention mandates is often “a question of resources.”

The United States has not had enough detention beds to accommodate the number of migrants awaiting removal proceedings for several years, well before President Biden took office. Even the Trump administration released migrants into the country, because the maximum detention capacity — about 55,000 in 2019 — was not enough to accommodate the number of arrivals seeking entry. Former President Donald J. Trump’s Remain in Mexico policy requiring some migrants to wait for their immigration court dates outside the United States, which Republicans want to reinstitute, did not apply to all migrants making claims at the border.

Parole powers allow migrants to live and work temporarily in the United States.

One of the impeachment articles says Mr. Mayorkas “paroled aliens en masse in order to release them from mandatory detention,” again with the intent of undermining the law.

But the immigration act gives the executive branch parole power to let migrants temporarily live and work in the United States for humanitarian reasons, or if their admission would be to the public’s benefit. Decisions about whom to parole are to be made on a case-by-case basis, and there is no restriction as to what criteria the secretary can consider when determining who qualifies. There is also no statutory cap on how many migrants can be allowed into the country under the authority.

Several past administrations, including those of former Presidents Trump, Barack Obama and George W. Bush, have relied on parole authority to bring members of certain vulnerable migrant groups into the United States.

The Biden administration has built on existing programs allowing nationals of certain economically ravaged Central and South American countries with sponsors already in the United States to seek parole. It has also inaugurated similar pathways for Afghans and Ukrainians fleeing war, and introduced a mobile app known as C.B.P. One to streamline migrants through ports of entry.

House Republicans have sought to close down those avenues, passing legislation last year that would shutter nearly all of them.

Mr. Mayorkas has tussled with Republicans over what constitutes “operational control” of the border.

House Republicans have also charged Mr. Mayorkas with lying under oath about the state of the border when he testified in 2022 that the department had “operational control.” He later explained that he was using a definition employed by the Border Patrol that defines “operational control” as “the ability to detect, respond and interdict border penetrations in areas deemed as high priority.” But that differs from the standard in a 2006 law called the Secure Fence Act, which defines the term as the absence of any unlawful crossings of migrants or drugs.

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