Gallagher: Republicans Should Reject Pelosi Precedent on Impeachment

Press Release

President Biden has created a disaster at our southern border. In his first 100 days in office, Mr. Biden halted border-wall construction, ended President Trump's successful Remain in Mexico policy, and implemented a catch-and-release regime. Homeland Security Secretary Alejandro Mayorkas is faithfully implementing the president's ruinous policies, which are contributing to immense human suffering, placing a massive financial burden on states and cities, and threatening our national security. His performance has been a disgrace.

But I disagree with my Republican colleagues who voted on Tuesday to impeach Mr. Mayorkas. Impeachment would not only fail to resolve Mr. Biden's border crisis but also set a dangerous new precedent that will be used against future Republican administrations.

The first article of impeachment lays out in grueling detail Mr. Mayorkas's manifest incompetence. But incompetence doesn't rise to the level of high crimes or misdemeanors. The proponents of impeachment concede that the framers rejected the idea that policy disputes or "maladministration" constitute grounds for impeachment. They argue instead that Mr. Mayorkas's underenforcement goes beyond maladministration, even though it doesn't reach the level of a criminal offense.

Their primary evidence is a 2021 memo signed by Mr. Mayorkas ordering immigration officials to consider more than illegal aliens' criminal history when determining which ones should be detained and removed. They cite district and circuit court decisions that ruled that the order contained in this memo was against the law, even though the Supreme Court reversed those rulings in U.S. v. Texas (2023). They cite Justice Samuel Alito's dissent in that case to claim Mr. Mayorkas broke the law.

But overturned and dissenting decisions have no legal force. Further, the majority in Texas affirms the longstanding precedent that the president and homeland security secretary have great discretion in enforcing border laws. And if we are to make underenforcement of the law, even egregious underenforcement, impeachable, almost every cabinet secretary would be subject to impeachment. The Treasury and State departments' nonenforcement of sanctions against Iran has emboldened a regime that is killing Americans in the Middle East. The defense secretary is clearly violating the Hyde Amendment by allowing defense travel funds to be used to facilitate abortions. These decisions--however reprehensible--aren't high crimes or misdemeanors but would be impeachable under the new standard.

Perhaps this is why we have never impeached a cabinet secretary except for criminal behavior. The person chiefly responsible for the chaos and devastation that has unfolded at the border is Mr. Biden, not Mr. Mayorkas. If Mr. Mayorkas were removed, his replacement would also implement Mr. Biden's disastrous border policies. If anything, impeaching Mr. Mayorkas absolves Mr. Biden of blame for his own policies.

Proponents argue that impeachment is the only option Congress has left to hold the Biden administration accountable after U.S. v. Texas established that states don't have standing to sue the federal government for nonenforcement of immigration laws. That isn't true. The courts have signaled that through the legislative process, Congress can authorize states to sue.

The articles of impeachment even tacitly admit there are other options available to Congress. The first article of impeachment quotes Justice Brett Kavanaugh's majority opinion, which says there are political checks for the political process. Justice Kavanaugh conspicuously doesn't list impeachment. Instead, he outlines other tools Congress has to check the executive--a list the impeachment articles elide when quoting the opinion. Justice Kavanaugh's list includes oversight, appropriations, lawmaking, Senate confirmations and the biggest political check of all: elections. Congress should exhaust all these options to secure the border, including defunding ridiculous Biden administration priorities and regulations until he changes his border policies.

The second article of impeachment accuses Mr. Mayorkas of failing to comply with multiple subpoenas and obstructing certain oversight actions, actions that are shameful but not outside the norm for cabinet secretaries. House Democrats impeached Mr. Trump for the same actions. Unlike Democrats' rushed process against Mr. Trump, we should take Mr. Mayorkas to court to produce any information he is withholding and hold him in criminal contempt of Congress if he further stonewalls legitimate oversight. If he continues to obstruct, we should reconsider impeachment under a more tailored version of the second article.

In 2019 and 2021, then-Speaker Nancy Pelosi and congressional Democrats used impeachment as a weapon against Mr. Trump, though they couldn't produce evidence he had committed a crime. It was a rushed, hyperpartisan process that lowered the bar for what constitutes an impeachable offense. Republicans rightly railed against this effort and the dangers of a single-party impeachment, impeachment for unpopular decisions, impeachment for non-criminal acts, and impeachment for not complying with congressional subpoenas.

Republicans should reject the Pelosi precedent. Creating a new, lower standard for impeachment, one without any clear limiting principle, won't secure the border or hold Mr. Biden accountable. It would only pry open the Pandora's box of perpetual impeachment.

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