How a Bush-era law requiring border ‘perfection’ stands at the center of the GOP impeachment case

A budding GOP impeachment case against Homeland Security Secretary Alejandro Mayorkas is relying on a 2006 law that says operational control of the border means the prevention of “all unlawful entries” to the United States — a standard seen as impossible to meet.

The Secure Fence Act of 2006 was passed during a failed Bush-era effort to move a comprehensive immigration reform bill. In the fallout, House Republicans rushed to show they were taking action on border security, requiring the installation of intermittent fencing along the southern border.

Alejandro Mayorkas, Secretary, US Department of Homeland Security (Gregory Payan/AP Images for NFL)

But a provision of the law defining operational control is now at the center of the new House GOP majority’s effort to impeach Mayorkas, who is accused of lying to Congress when he’s said the border is secure.

“Secretary Mayorkas does not think that the border is open. He thinks that he has operational control, although the Secure Fence Act of 2006 clearly defines what operational control of a border is, and that means that no contraband or individuals can come into the country illegally,” said Rep. Andy Biggs, a conservative Republican from Arizona and one of two members who have formally introduced articles of impeachment against Mayorkas.

Rep. Andy Biggs, R-Ariz. (AP Photo/Alex Brandon)

“And yet, under his watch, Secretary Mayorkas has allowed in about 5 million illegal aliens coming through, and that doesn’t include got-aways,” added Biggs.

Republicans argue that Mayorkas has been ineffective in managing what they see as a crisis, as record numbers of migrants attempt to cross the southern border. It’s a failure they contend is a violation of his oath of office.

“He has taken an oath, a constitutional oath, to obey the laws of the United States and protect us,” said Rep. Pat Fallon (R-Texas), who this year filed the first articles of impeachment against Mayorkas.

Rep. Pat Fallon, R-Texas (AP Photo/Jess Rapfogel)

“In 2006, the Secure Fence Act was passed which required the Department of Homeland Security Secretary to maintain the operational control of the southern border. He has clearly not done that,” Fallon said.

Democrats and other critics of the GOP case argue that the differences between Republicans and Mayorkas are largely policy issues that don’t rise to the level of impeachment.

“Impeachment covers treason, bribery and other high crimes and misdemeanors. It’s not typically envisioned as covering policy disputes, or agrees on policy, which seems like what these are,” said Dave Rapallo, a Georgetown Law professor who also worked with Democrats on the impeachment of former President Trump.

He and others argue that the 2006 law lays out an impossible standard — but includes clear language that gives the secretary the discretion to determine how to meet it.

“Congress has delegated to the secretary of Homeland Security the decision to determine what is ‘necessary and appropriate.’ And that’s what the department is doing. There may be a difference of opinion about whether that happens with walls or other mechanisms to prevent unlawful entry,” Rapallo said. “But if the standard is that not one migrant can get into the United States, that’s a standard no Homeland Security secretary would ever meet.”

Doris Meissner, who ran the Immigration and Naturalization Service under former President Clinton and how heads the US Immigration Policy Program at the Migration Policy Institute, said the standard “isn’t something that we ask of any other law enforcement regime.”

Previous Homeland Security secretaries, Democrats and Republicans, have not been removed over the standard highlighted by Biggs and Fallon.

“The assumption with having law enforcement at all, is that there are laws and there will be a degree to which laws are broken, and law enforcement, and law enforcement systems, and structures are in place to keep them to a minimum and to create accountability if they do happen,” said Meissner.

Biggs himself acknowledged the standard that no one or thing can enter the country illegally for the DHS secretary to not be impeached is a high one. But he argues Mayorkas still deserves to be impeached because of how he has handled border security.

“While that particular statute requires perfection, which we all recognize is an impossible task, the American public still trusts him to do his very best to secure operational control of the border. He necessarily has the ‘public trust,’ and as a Cabinet secretary, he is a public man,” he wrote in an op-ed shortly after introducing his resolution.

“The case against Alejandro Mayorkas … does not necessarily turn on whether Mayorkas has actually committed a statutory defined black-letter crime. It is whether he has committed a ‘high crime’ as that term is understood under the US Constitution.”

The fencing bill was passed after two competing comprehensive immigration reform bills moved through the House and Senate in 2005.

The House version, led by former Rep. Jim Sensenbrenner (R-Wis.), was a security-focused immigration crackdown; the Senate version led by former Sens. John McCain (R-Ariz.) and Ted Kennedy (D-Mass.) paired border security and guest worker provisions with a broad legalization program for undocumented immigrants.

Mon. John McCain, R-Ariz., Jan. 29, 2008 (AP Photo/Charles Dharapak, Files)

To no one’s surprise, the House and Senate were unable to find a middle ground in conference, and the two bills failed in the lead-up to the 2006 midterm elections.

“There really was a strong feeling, in the Senate in particular, that people had to go home with something to show for immigration, in order to be running their campaigns, and having some kind of message to take back to their constituents,” said Meissner.

“So they passed this act quite hastily in October of 2006, right on the cusp of the elections. It just had this sort of sweeping mandate, which really hadn’t been tested or vetted with the executive branch,” she added.

Rep. Michael McCaul (R-Texas), one of the co-sponsors of the 2006 border bill, described the legislation as tasking the Homeland Security secretary to determine where to put fencing.

Rep. Michael McCaul, R-Texas (AP Photo/Jacquelyn Martin, File)

“It was our intention to put a fence not everywhere but where it made sense to put the fence on the border, you know, [in] more populated areas to have the infrastructure in place to stop illegal crossings,” he said, noting along with specific mileage of fencing, “we gave discretion to the secretary to use his or her judgment as to where to put it.”

McCaul, a stern Mayorkas critic who has directly admonished the secretary in hearings, has also criticized members of his party for rushing a process he said should be handled by committees of jurisdiction who can investigate and build a strong case for impeachment.

“You can make the case for the American people without having to do it overnight. We criticized the Democrats for impeaching Trump in one day. … We shouldn’t make that same mistake,” he told The Hill.

Mayorkas and his department are now gearing up for a fight.

The department initially declined to assign specific staff to deal with impeachment, but on Friday confirmed it had hired an outside law firm to aid in any eventual impeachment hearings.

It’s also shifted the tone in its public statements on impeachment developments, attacking the credibility of the resolutions directly.

“Instead of pointing fingers and trying to score political points, the Members of Congress recklessly and baselessly pursuing impeachment should work on legislative solutions for our broken immigration system,” DHS said last week when Biggs’s resolution was introduced.

Republicans have rolled out other arguments for impeachment, including one that mirrors a recent lawsuit from a number of GOP-led states challenging a program that allows 30,000 migrants from Cuba, Nicaragua, Haiti and Venezuela to be “paroled” into the country each month, while quickly expelling to Mexico an equal number of migrants from those countries who showed up at the border.

The resolution deems the current use of parole an abuse, calling it a way to “’legally’ admit aliens.”

Biggs and other Republicans are also basing their impeachment case on a broader claim — dismissing as a conspiracy theory by Democrats — that the Biden administration is intentionally loosening border controls.

“First of all, when we look at that intentionality, this is done intentionally,” Biggs told reporters last week. “This is not negligence, it is not by accident. It is not incompetence, and how do we know that? Well, just like we look at a culpable mental state, like intentionality or knowledge, we look at a totality of circumstances.”

Biggs said the evidence of intention is in Mayorkas ending a series of Trump-era border policies, a move that many Republicans believe is the direct cause of increased migration in the Western Hemisphere, presumably knowing his policies would result in increased border crossings.

But whether the Republican leadership decides to forward any impeachment resolution, the process could face a substantial roadblock in the Democratic-controlled upper chamber.

“A majority of the House could just decide to impeach the secretary based on whatever it puts in its resolution,” Rapallo said. “But that’s highly unlikely to go anywhere in the Senate.”

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