Opinion | Impeachment of Alejandro Mayorkas is unconstitutional

Joshua Matz, a partner at Kaplan, Hecker & Fink, served as counsel to the House Judiciary Committee during both the impeachment and trial of President Donald Trump. Norm Eisen was President Barack Obama’s special counsel and served as special counsel for the House Judiciary Committee during the first Trump impeachment and trial.

House Republicans appear poised to move forward with a partisan impeachment of Homeland Security Secretary Alejandro Mayorkas. They do not allege corruption, abuse or criminal activity. They blame simply poor judgment, believing legal authority and enforcement discretion could be better used to protect the southern border.

No matter how wise Mayorkas’ policy decisions are, the argument that he should be impeached is constitutionally indefensible.

In creating the U.S. Constitution, the Framers incorporated Britain’s impeachment power, but made several important changes. Historically, parliament has impeached royal ministers on charges of “misadministration” on the grounds of policy errors or poor government performance. The framers rejected that vision. Impeachment of “the President, Vice President, and all civil officers of the United States” instead required evidence of gross misconduct: “treason, bribery, or other high crimes and misdemeanors.”

This decision was the basis of the separation of powers. Congress has many tools it can use to shape public policy and express disagreements with the executive branch. However, impeachment is not included in that. In order to enable presidents to govern and to enable them to select a Cabinet to carry out their vision, the framers believed that impeachment over policy disagreements, no matter how violent However, even if it was consequential, it was prohibited.

That understanding has continued throughout American history. Despite centuries of bitter policy disagreements between Congress and the executive branch, there has only been one impeachment of a cabinet minister. In 1876, Secretary of War William Belknap was impeached for a corrupt kickback scheme. He resigned minutes before the House vote, but that did not deter House members from impeaching him anyway.

Of course, not all executive branch officials are angels. However, in reality, unscrupulous ministers cannot be restrained by parliamentary impeachment. They are either fired by the president or simply resign.

Officials who supported the president have never been impeached for carrying out policy in a way the House found objectionable. Impeaching Mayorkas on this basis would violate the constitution and upset the balance of the separation of powers. Future Cabinet members will be unduly callous in carrying out their duties, and presidents will fear that heated policy debates will drag their most senior officials into the quagmire of impeachment.

This concern applies across the board in homeland security settings as well. The rule against impeachment based on policy disagreements is most evident in disputes over immigration enforcement. He has two shining precedents.

The first incident occurred in 1920, when the House of Representatives considered impeaching Assistant Secretary of Labor Louis Post. The previous year, Attorney General A. Mitchell Palmer carried out the infamous “Palmer Raid,” in which he rounded up and deported suspected extremists, anarchists, and communists indiscriminately. When these deportation orders reached Mr. Post’s desk (at the time, the Department of Labor oversaw immigration matters), he canceled more than 1,000 of them, citing a lack of evidence to justify the deportations. Ta.

The reaction was explosive. An editorial in the New York Times claimed that Mr. Post had “unleashed public enemies into the nation, including fugitives from justice.” Representative Homer Hoch, Republican of Kansas, introduced an impeachment resolution that was referred to the House Rules Committee.

The Post was furious. He characterized his initial reports accusing him of wrongdoing as “sluggishness of mind due to nervousness.” As the Post later wrote, “I was offended that instead of deporting all aliens indiscriminately, they deported those found guilty and released the rest.” Says.

Mr. Post’s subsequent testimony before the Rules Committee was shocking. As one observer put it, the committee “had the aspect of a group of gentlemen who had gotten a very hot poker and were looking for a place to let it cool.” The move toward impeachment collapsed.

Less than two decades later, a similar story unfolded. In 1938, Martin Deese, Jr., chairman of the House Un-American Activities Committee, accused Labor Secretary Francis Perkins of unfairly failing to deport people accused of being communists. When Deas escalated her attacks on Perkins’ immigration policies, she responded pointedly: “It is not normal for a legislative branch with so many duties to try to usurp the functions and duties of the executive branch,” she said.

Undeterred, another member of Deese’s committee introduced an impeachment resolution. Among other things, it recalled recent attacks on Mayorkas, accusing Perkins of “failing, ignoring and refusing to enforce the law.” . . US immigration law. ”

Perkins was upset. However, she maintained her support from President Franklin D. Roosevelt and vigorously voiced her own response to immigration issues, including her closed-door testimony before the House Judiciary Committee. defended it.

Ultimately, the committee concluded that “there were no sufficient facts presented or presented to justify intervention by the House of Representatives in its constitutional impeachment powers.” The decision was unanimous. Regarding Perkins’ response to a particularly controversial deportation decision, the court found that her decision “involved a question of judgment, and there is no evidence that it was not exercised in good faith.”

As these cases demonstrate, disagreement over the honest exercise of executive discretion by Cabinet officials is not a valid basis for impeachment. By launching an impeachment attack against Mr. Mayorkas, House Republicans are not only violating the Constitution, but also going against longstanding precedent. They should step back from the brink.

Source link

Related Posts

Next Post

Follow Us



    Please install/update and activate JNews Instagram plugin.