Why impeaching Mayorkas would violate the Constitution

House Republicans appear poised to rush through a partisan impeachment of Alejandro Mayorkas, the secretary of Homeland Security. They do not allege corrupt, abusive or criminal conduct; they accuse him merely of poor judgment, believing he could better use his legal authority and enforcement discretion to safeguard the southern border.

Whatever the wisdom of Mayorkas’s policy decisions, the claim that he should be impeached is indefensible as a matter of constitutional law.

In designing the U.S. Constitution, the framers adapted the impeachment power from England, but made several key changes. Parliament had historically impeached royal ministers for “maladministration” — for bad policy or poor performance in office. The framers rejected that vision. For impeachments of “the President, Vice President and all civil Officers of the United States,” they instead required proof of egregious malfeasance: “Treason, Bribery, or other high Crimes and Misdemeanors.”

This decision was fundamental to the separation of powers. Congress has many tools it can use to shape public policy and express disagreement with the executive. Impeachment, however, is not one of them. To ensure that the president could govern — and that he could select a Cabinet to execute his vision — the framers forbade impeachment over policy disagreements, no matter how fierce or consequential.

That understanding has endured throughout American history. Despite centuries of heated policy disagreements between Congress and the executive, there has been only a single impeachment of a Cabinet official. In 1876, War Secretary William Belknap was impeached for a corrupt kickback scheme; although he resigned minutes before the House vote, that did not deter House members from impeaching him anyway.

Of course, not all executive branch officials are angels. But in practice, miscreant Cabinet officials are not corralled through congressional impeachment. They are fired by the president, or they simply resign.

No official who maintained the president’s support has ever been impeached for carrying out policy in ways the House found objectionable. Impeaching Mayorkas on that basis would offend the Constitution and unbalance the separation of powers. Future Cabinet officials would be unduly chilled in doing their job, and presidents would fear that heated policy disputes might engulf their most senior officials in an impeachment quagmire.

This concern applies with full force in the homeland security setting. The rule that we do not impeach over policy disagreements has had its strongest expression in disputes over immigration enforcement. There are two illuminating precedents.

The first occurred in 1920, when the House considered impeaching Assistant Secretary of Labor Louis Post. Over the previous year, Attorney General A. Mitchell Palmer had carried out his infamous “Palmer Raids,” indiscriminately rounding up suspected radicals, anarchists and communists for deportation. When those deportation orders reached Post’s desk (the Labor Department then oversaw immigration matters), he canceled more than 1,000 of them, citing the absence of evidence justifying removal.

The response was explosive. A New York Times editorial claimed that Post “let loose on the country these public enemies, some of them fugitives from justice.” Rep. Homer Hoch, a Republican from Kansas, put forward an impeachment resolution, which was referred to the House Rules Committee.

Post was outraged. He viewed an initial report accusing him of misconduct as “mental dullness at high tension.” As Post later wrote, “I had offended by deporting such aliens as were proved guilty and releasing the others, instead of pitching all of them out of the country indiscriminately.”

Post’s ensuing testimony before the Rules Committee was electric. As one observer remarked, the committee “had very much the aspect of a group of gentlemen who had picked up a very hot poker and were looking for some place to cool it.” The drive to impeach collapsed.

A similar tale unfolded less than two decades later. In 1938, Martin Dies Jr., the chairman of the House Un-American Activities Committee accused Labor Secretary Frances Perkins of wrongly failing to deport an accused communist. As Dies escalated his attacks against Perkins’s immigration policies, she bitingly responded: “It is not usual for the legislative branch which has so many duties to attempt to usurp the functions and duties of the administrative branch.”

Undeterred, another member of Dies’s committee introduced an impeachment resolution. Among other things, and reminiscent of the latest attacks against Mayorkas, it accused Perkins of “having failed, neglected, and refused to enforce the . . . immigration laws of the United States.”

Perkins was shaken. But she maintained support from President Franklin D. Roosevelt and vigorously defended her handling of immigration matters, including in closed-door testimony before the House Judiciary Committee.

Ultimately, the committee concluded that “sufficient facts have not been presented or adduced to warrant the interposition of the constitutional powers of impeachment by the House.” The decision was unanimous. With respect to Perkins’s handling of a particularly controversial deportation decision, it 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 confirm, disagreement over a Cabinet official’s good-faith exercise of enforcement discretion is not a valid basis for impeachment. In launching an impeachment attack against Mayorkas, House Republicans not only violate the Constitution but also defy long-standing precedents. They should step back from the brink.