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Even some Republicans are nervous about how Mayorkas' impeachment could backfire

Brent D. Griffiths   

Even some Republicans are nervous about how Mayorkas' impeachment could backfire
  • Republicans who opposed DHS Secretary Alejandro Mayorkas' impeachment have warned about what's to come.
  • They fear that impeachment now will become a completely political tool.

Homeland Security Secretary Alejandro Mayorkas is only the second Cabinet secretary to be impeached in American history. Some Republicans are worried that the case against him is so weak that Tuesday night's vote is destined to become a harbinger of what's to come.

"Creating a new, lower standard for impeachment, one without any clear limiting principle, wouldn't secure the border or hold Mr. Biden accountable. It would only pry open the Pandora's box of perpetual impeachment," Rep. Mike Gallagher of Wisconsin, perhaps the most surprising of the three Republicans to vote against the impeached, wrote in a Wall Street Journal op-ed.

The three Republicans who voted to oppose Mayorkas' impeachment have each warned about establishing a new precedent for the action some lawmakers place only below authorizing a war.

"Well, the Constitution hasn't changed since last week, so my vote is not going to change," Republican Rep. Tom McClintock of California, one of the trio, said before the second vote. "These are the same reasons I vigorously opposed the sham impeachments of Donald Trump."

House Speaker Mike Johnson has strongly rejected concerns that the Homeland Security secretary did not commit impeachable offenses.

"For nearly a year, the House Homeland Security Committee has taken a careful and methodical approach to this investigation and the results are clear: from his first day in office, Secretary Mayorkas has willfully and consistently refused to comply with federal immigration laws, fueling the worst border catastrophe in American history," Johnson said in a statement after the vote.

It is worth noting that dissenters are not happy with how House then-Speaker Nancy Pelosi handled President Donald Trump's two impeachments. In the same column that he warned his party, Gallagher referred to Pelosi's actions as "us[ing] impeachment as a weapon" against Trump. Still, the vote to impeach Trump for inciting the Capitol riot was the most bipartisan presidential impeachment vote in history.

Presidential impeachments have always been political. As The New York Times pointed out during Trump's first impeachment, one out of every four presidents have had articles of impeachment written up against them. Historically, there's been a key difference. Most of these articles go nowhere. Party leadership can't stop any lawmaker from writing articles of impeachment, but they can make sure that they gather little more than dust. By George W. Bush's final year in office, then-Rep. Dennis J. Kucinich, an Ohio Democrat, filed 35 different articles against Bush into the record.

But congressional leadership's power is waning. Republicans were able to stall Rep. Marjorie Taylor Greene, a Georgia Republican, for only so long before they were forced to reconcile their long investigation into Mayorkas' actions with Greene's persistent push to impeach him.

The future of impeachment might be seen in other congressional powers.

In the Senate, judicial confirmations, which less than a generation ago enjoyed largely bipartisan support, would make Machiavelli blush.

A more relevant example would be censure. Censures mean nothing but used to be thought of that summoning a House lawmaker for a public rebuke by the Speaker of the House in front of their colleagues was a punishment only reserved for particularly egregious acts.

There have now been three censures in the last year. As my colleague Bryan Metzger previously wrote, this marked the most censure votes since 1870. Part of this is clearly due to House Republicans making it easier for any member to introduce a censure resolution, but it also comes in an era where this exact type of punishment is perfect fodder to feed to a political base. Even the targets can turn their colleagues' ire into an advantage. Rep. Adam Schiff, a California Democrat, raised millions over the period that included his House Republican-led censure.

The trio of Republicans are joined by constitutional scholars, including some who have been sympathetic to past GOP views, who say Republicans' charges that Mayorkas run counter to how the framers of the constitution conceived of the power.

"[B]eing a bad person is not impeachable—or many cabinets would be largely empty," George Washington University Law School professor Jonathan Turley wrote in The Daily Beast last month. "Moreover, being bad at your job is not an impeachable offense. Even really bad. Even Mayorkas' level of bad."

It may be up to the scholars to wage those arguments going forward. Two of the three Republican no votes, Gallagher and Rep. Ken Buck of Colorado, will retire after this Congress. Gallagher announced his decision just days after bucking his party on the first vote to impeach Mayorkas.

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