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How Mayorkas’ Impeachment Undermines the Rule of Law

In 1776, Founding Father John Adams wrote that the new Republican government of the United States should be “an Empire of Laws, and not of men”. Within this system, the rule of law reigns supreme and demarcates a normative framework that prevents authorities from exercising power arbitrarily or ad hoc. Executive, judicial, and legislative power should thus remain checked, separate, and subject to the rule of law — a provision supported by Article VI, Clause 2 of the United States’ Constitution. It’s a cornerstone of U.S. governance, an inviolable principle upon which the U.S. legal system is built. Yet it has been undermined, violated even, within an increasingly polarised political society.


The recent impeachment of Homeland Security Secretary Alejandro Mayorkas is nothing if not an ad hoc use of legislative power. First introduced by Rep. Marjorie Taylor Greene (R-Ga.) in November 2023, the motion to impeach was reconsidered and agreed to in early February on grounds of high crimes and misdemeanours committed by Mayorkas in his failure to secure the U.S.-Mexico border. The first full House vote failed in a vote of 214-to-216 but narrowly passed a week later on Feb. 13 in a vote of 214-to-213. This makes Mayorkas the first cabinet official to be impeached since 1876. 


All but three Republican representatives — Reps. Ken Buck, Mike Gallagher, and Tom McClintock — voted for Mayorkas’ impeachment, making the issue decidedly partisan. The Republican case for impeachment is headed by House Committee on Homeland Security Chairman Mark E. Green, who provides two justifications: in disregarding provisions of the Immigration and Nationality Act, Mayorkas consciously refused to comply with the law. “Mr. Mayorkas breached public trust,” wrote Green, “both by violating his statutory duty to control the border and by knowingly making false statements to Congress.” Green also accuses Mayorkas of obstructing oversight and withholding subpoenaed documents. 


In an issued statement, Senate Majority Leader Chuck Schumer argued that House Republicans did not provide any evidence that supported the above claims, or anything that was even potentially impeachable. “This is a new low for House Republicans,” said Schumer. President Joe Biden criticised the ‘baseless’ impeachment, “History will not look kindly on House Republicans for their blatant act of unconstitutional partisanship that has targeted an honourable public servant in order to play petty political games.” Partisanship, characterised by complete loyalty to one party and their ideologies while resisting the opposition, hinders effective political cooperation and exacerbates polarisation. Instead of working with the Biden Administration to resolve the border crisis, House Republicans are using the impeachment as a tool to criticise its immigration policies.


Realistically, the charges against Mayorkas should amount to no more than a violation of immigration law and generally inadequate performance. The detention capacity at the border is indeed limited as demand increases — peaking in December 2023 at just over 300,000 migrants — hence Mayorkas’ decision to release a portion of detained illegal immigrants on parole. Mayorkas provided the requested documents and offered to testify, repudiating the claim to obstruction of oversight. Certainly, Mayorkas’ actions cannot be classified as the “high crimes and misdemeanours” required to impeach. 


Though Mayorkas’ acquittal in the Senate is more than likely, even holding the trial sets a bad precedent for the future abuse of impeachment power. 


At its core, impeachment is a critical, ‘last-ditch’ effort to ensure that the rule of law is upheld. Article II, Section 4 of the U.S. Constitution outlines impeachable offenses as “Treason, Bribery, or other high Crimes and Misdemeanours”. It is also intended to check serious abuse or misuse of power by government officers. 


As indicated by this case, impeachment can no longer truly be considered the final legal curtail on extrajudicial uses of power. Rather, instead of enforcing the rule of law, it has been used more frequently to undermine it. The demanding and increasingly partisan U.S. government have accosted impeachment as a tool to exact revenge, air policy complaints, and achieve political goals. 


The United States seems to be moving further from Adams’ “Empire of Laws,” to that “of men,” in which the rule of law is reduced to but a formality. As the lines of the normative legal framework blur, discretionary uses of governmental power will proliferate, and the system is ruled not by law, but by polarised politics.

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