Impeachment Case Against Mayorkas Ignores Government’s Immigration Powers

House Republicans have charged President Biden’s homeland security secretary with breaking the law by failing to enforce border mandates, but statute gives him wide authority to address immigration.

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Alejandro N. Mayorkas, the homeland security secretary, would be only the second cabinet secretary to be impeached in American history.

House Republicans’ impeachment case against Alejandro N. Mayorkas, the homeland security secretary, boils down to a simple allegation: that he has broken the law by refusing to enforce immigration statutes that aim to prevent migrants from entering the United States without authorization.

The Homeland Security Committee approved articles of impeachment against Mr. Mayorkas on a party-line vote early Wednesday morning, setting the stage for a vote of the full House next week. If impeached, he would be only the second cabinet secretary to receive that punishment in American history, the first in 148 years and the only one to be indicted by Congress for nothing more than carrying out the policies of the president he serves.

Republicans have moved forward with the process even though constitutional scholars, past secretaries of homeland security and even some former legal advisers to former President Donald J. Trump have noted that nothing Mr. Mayorkas is accused of rises to the level of high crimes and misdemeanors, the standard for impeachment laid out in the Constitution.

The G.O.P. argues that the secretary’s failure to uphold certain aspects of immigration law is itself a constitutional crime. But in the United States, the president and his administration have wide latitude to control the border, and Mr. Mayorkas has not exceeded those authorities.

Here’s a look at the holes in the impeachment case against him.

The government has broad authority over how and when to detain migrants.

The impeachment articles that the House Homeland Security Committee approved accuse Mr. Mayorkas of flouting several provisions of the Immigration and Nationality Act that say deportable migrants “shall be detained” until they can be removed from the country. They charge that the secretary pursued a “catch and release” scheme to allow inadmissible migrants into the United States, knowing that it would be difficult or even impossible to ensure they would later appear in immigration court for removal proceedings.

What the charges do not take into account, however, is that Mr. Mayorkas also has the legal authority to determine which migrants to prioritize for detention, given limited bed space and long backlogs in the immigration courts.

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