House Republicans will try to impeach Homeland Security Secretary Alejandro N. Mayorkas for a second time on Tuesday, on charges that he willfully refused to enforce border laws and violated the public trust, after their first attempt at a partisan impeachment failed with a stunning defeat.
Three Republicans joined all Democrats last week in rejecting impeachment charges, leaving the GOP, which has a narrow margin, just one vote short of a majority in a humiliating spectacle on the House floor.
The decisive moment came when Rep. Al Green, Democrat of Texas, who Republicans had counted on to miss the vote, arrived in a hospital gown fresh from abdominal surgery to cast his no vote. With Representative Steve Scalise, Republican of Louisiana and the majority leader, absent while undergoing treatment for blood cancer, the Republican Party was unable to make up the shortfall.
Republicans invited Mr. Scalise to Washington this week and were confident on Tuesday that their second attempt would be successful. That would put Mr. Mayorkas in the company of former presidents and administration officials who have been indicted on charges of personal corruption, election meddling and even inciting rebellion.
But the charges brought by Republicans broke with history by not identifying any such act, instead effectively declaring the political choices of the Biden administration that he had committed a constitutional crime. The approach threatened to lower the bar on impeachment — which had already fallen in recent years — by reducing what was once Congress’ most powerful tool for removing despots from power to a weapon used in political battles.
Democrats, former Homeland Security secretaries, the nation’s largest police union and a chorus of constitutional law experts — including conservatives — have condemned the impeachment effort as an apparent attempt to settle a political dispute with a constitutional penalty, without evidence that the secretary’s conduct rose to the level of high crimes and misdemeanors. .
Last week, only three House Republicans — Reps. Ken Buck of Colorado, Mike Gallagher of Wisconsin and Tom McClintock of California — agreed, voting with Democrats against the impeachment resolution.
“Creating a new, lower standard for impeachment, without any clear limiting principle, will not secure the border or hold Mr. Biden accountable,” Mr. Gallagher said in a statement at the time, adding that impeachment “would set a dangerous new precedent that will be weaponized against future Republican administrations.”
Republicans who broke with their party suffered a significant political blow for their insubordination. Over the weekend, Mr Gallagher, who challenged a primary challenger after the recall vote, announced he would not seek re-election.
Although other Republicans expressed skepticism about the allegations before last week’s vote, party leaders managed to keep them in line. To prevail on Tuesday, they must maintain that support.
The vote to impeach Mr. Mayorkas comes amid a broader battle in Congress over how to address border and national security. Tuesday’s vote comes just hours after the Senate passed a bipartisan national security spending package that will provide $60.1 billion to help Ukraine fight the Russian invasion, $14.1 billion to help Israel in its war against Hamas and nearly $10 billion in humanitarian aid to civilians in conflict zones, including Palestinians in Gaza.
Mr. Mayorkas helped senators negotiate an earlier version of the bill that paired foreign aid with border reductions, something Republicans had sought. But Senate Republicans killed the measure last week, under pressure from far-right House Republicans and former President Donald J. Trump, who denounced it as too weak.
The Democrats claimed that the attempt to impeach Mr. Mayorkas just another gesture of congressional Republicans’ loyalty to Mr. Trump, who has made it clear that he wants to make cracking down on immigration a centerpiece of his presidential campaign.
“The truth is that the extreme MAGA Republicans who run the House don’t want solutions, they want a policy issue,” Rep. Bennie Thompson of Mississippi, the top Democrat on the homeland security panel, said during last week’s debate. He accused Republicans of trying to “distort the Constitution and the secretary’s record to cover up their inability and unwillingness to work with Democrats to strengthen border security.”
But the Republicans directing the effort were determined to single out Mr. Mayorkas as the main culprit for the state of the border and the influx of migrants and illegal drugs that have crossed it in recent years.
“He is guilty of aiding and abetting the total invasion of our country by criminals, gang members, terrorists, murderers, rapists and over 10 million people from 160 countries into American communities across the United States,” Representative Marjorie Taylor Greene, Republican of Georgia who has led efforts to seek his removal, he said during last week’s debate.
Accusations against Mr. Mayorkas has no chance of conviction in the Democratic-led Senate, where he would need a two-thirds majority, and even some Republicans noted that he would be dead on arrival. It was not clear whether leaders there would go through with the exercise of holding a full trial or vote to drop the charges against Mr. Mayorkas was immediately rejected.
The House planned to appoint 11 Republicans to represent the case against Mr. Mayorkas as impeachment managers, including Ms. Greene and Representative Mark E. Greene, Republican of Tennessee and chairman of the House Homeland Security Committee, which prepared the articles of impeachment last month. At that time they also produced report in which they said about the secretary of Cuban origin that they were “deporting Secretary Mayorkas from his position”.
Republicans have pledged for more than a year to impeach Mr. Mayorkas, but the process was rushed through in just a few weeks, in what Democrats denounced as a botched attempt to conclude a “sham” impeachment. Republicans defended the speed of their actions, saying they had spent months scrutinizing Mr. Mayorkas’ policies in a previous investigation.
The first of two charges accuses Mr. Mayorkas of replacing Trump-era policies, such as the program commonly called Remain in Mexico, which required many migrants to wait at the southwest border for their court dates, with a “catch and release” policy that allowed migrants to roam freely in the United States. Republicans accuse that Mr. Mayorkas ignored multiple mandates of the Immigration and Nationality Act, which says migrants “shall be detained” pending asylum decisions and removal orders, and acted beyond his authority to let migrants into the country.
Democrats pushed back hard, noting that Mr. Mayorkas has the right to set policies to manage the waves of migrants arriving at the border. This includes the temporary entry of certain migrants into the country for humanitarian reasons and the prioritization of which migrants to retain, especially when working with limited resources.
Another article accuses Mr. Mayorkas of violating public trust by misrepresenting the state of the border and blocking congressional efforts to investigate him. Republicans base the accusations on Mr. Mayorkas’ 2022 claim that his department had “operational control” of the border, defined by a 2006 statute as the absence of any illegal crossing of migrants or drugs. Mr. Mayorkas said he was instead referring to the less absolute definition used by the Border Patrol.
They also accuse Mr. Mayorkasa for failing to produce documents, including materials he was ordered to give them under subpoena, during the investigation into his border policy and avoiding their efforts to compel him to testify as part of their impeachment proceedings. Administration officials countered that Mr. Mayorkas produced tens of thousands of pages of documents in accordance with the commission’s requirements. He offered to testify in person, but council Republicans withdrew their invitation to appear after the two sides ran into scheduling issues.
Critics of the case have pointed out that the secretary’s removal is unlikely to change the Biden administration’s border policy and would not equip officials with the powers and resources they need to do a more effective job of enforcing immigration laws.
“While House Republicans waste time playing political games, Secretary Mayorkas is enforcing our laws and working to keep America safe,” Mia Ehrenberg, a spokeswoman for the Department of Homeland Security, said in a statement. “Members of Congress who are serious about these efforts should work with the administration to fix our country’s broken immigration laws and properly resource the department’s vital missions instead of facilitating this farce of impeachment.”
The only other cabinet secretary to be dismissed was William Belknap, Secretary of War under President Ulysses S. Grant. Belknap resigned in 1876 just before the House impeached him for corruption after finding evidence that he had been involved in massive wrongdoing, including accepting bribes. The Senate later acquitted him.