Introduction
The U.S. House of Representatives passed a resolution of impeachment1 against Secretary of Homeland Security Alejandro Mayorkas on February 13, 2024. But the story of Secretary Mayorkas’ impeachment really began last summer. The catalyst for the House’s extraordinary action — only the second impeachment by the House of a cabinet official in American history, the first being Secretary of War William Belknap in 1876 — was a decision reached by the U.S. Supreme Court last June 23. That decision, U.S. v. Texas, dramatically altered the balance of power between the executive branch, Congress, and the states in instances where the executive branch chooses to, to put it charitably, less than faithfully execute the immigration laws of our nation. The decision left the House with little choice but to impeach Alejandro Mayorkas, at least should it desire to preserve its constitutional prerogatives and protect the states from the disastrous consequences of Secretary Mayorkas’s willful and systemic refusal to comply with federal immigration laws.
As the House Committee on Homeland Security’s report on the Mayorkas impeachment resolution concluded:
The impeachment proceedings against Secretary Mayorkas … occur in a unique legal context in which the Supreme Court of the United States itself has left the House of Representatives no choice but to impeach the Secretary if DHS [the Department of Homeland Security] is to promptly resume enforcement of the federal immigration laws. Indeed, the Secretary continues his impeachable conduct by exploiting the Supreme Court’s refusal to provide relief to the States, which has resulted in a situation, as articulated by Supreme Court itself, in which impeachment by the House of Representatives and removal by the Senate is the only remaining means by which the States can obtain prompt relief.
U.S. v. Texas
Last June, after reading in disbelief the Supreme Court’s decision, authored by none other than the Trump-nominated Justice Brett Kavanaugh, I wrote in dismay that:
In U.S. v. Texas, the Supreme Court issued a … decision throwing out Texas and Louisiana’s challenge to DHS Secretary Mayorkas’ 2021 “Guidelines for the Enforcement of Civil Immigration Law”, in which Mayorkas told DHS immigration officers in no uncertain terms to ignore congressional mandates regarding the arrest and detention of criminal aliens and aliens ordered removed.
The prevailing coalition of Justices Kavanaugh, Roberts, and the three Obama/Biden … justices ruled that the two states didn’t have “standing” to bring a legal challenge in the first place, even assuming that the Mayorkas Guidelines were unlawful. In fact, the clear import of the coalition’s decision is that no one will be able to establish the standing necessary to challenge an administration’s flouting of congressional mandates regarding the arrest, prosecution, and likely the detention of persons in the immigration and criminal justice contexts. The coalition has dealt Congress’s plenary power over immigration a severe blow.
I then quoted from Justice Alito’s fiery and righteously indignant lone dissent:
The Secretary of Homeland Security ... has instructed his agents to disobey this legislative command and instead follow a different policy that is more to his liking. And the Court now says that no party injured by this policy is allowed to challenge it in court.
The majority’s conception of Presidential authority smacks of the powers that English monarchs claimed prior to the “Glorious Revolution” of 1688, namely, the power to suspend the operation of existing statutes, and to grant dispensations from compliance with statutes. After James II was deposed, that changed.
The decision has devastating implications for the states. Justice Neil Gorsuch in his concurrence (joined by Justices Amy Coney Barrett and Clarence Thomas) wrote that “The States proved that the Guidelines increase the number of aliens with criminal convictions and final orders of removal released into the States. They also proved that, as a result, they spend more money on everything from law enforcement to healthcare.” Justice Alito confronted the Court’s majority with the consequences of its ruling:
[The Court’s decision] renders States already laboring under the effects of massive illegal immigration even more helpless.
Texas’s entry into the Union stripped it of the power that it undoubtedly enjoyed as a sovereign nation to police its borders and regulate the entry of aliens. The Constitution and federal immigration laws have taken away most of that power, but the statutory provisions at issue in this case afford the State at least some protection — in particular by preventing the State and its residents from bearing the costs, financial and non-financial, inflicted by the release of certain dangerous criminal aliens. Our law on standing should not deprive the State of even that modest protection.
This Court has held that the Federal Government’s authority in the field of immigration severely restricts the ability of States to enact laws or follow practices that address harms resulting from illegal immigration … . If States are also barred from bringing suit even when they satisfy our established test for Article III standing, they are powerless to defend their vital interests. If a President fails or refuses to enforce the immigration laws, the States must simply bear the consequences. That interpretation of executive authority and Article III’s case or controversy requirement is deeply and dangerously flawed.
Talk about a June swoon for the much-vaunted Kavanaugh Court (which I discuss at the end of this report).
The Impeachment
But what does any of this have to do with the impeachment of Alejandro Mayorkas? I wrote last June that:
Justice Kavanaugh’s opinion made crystal clear that there is absolutely no judicial recourse when the executive branch refuses to abide by Congress’ arrest and prosecution mandates. Let me repeat that: there is no judicial recourse available to anyone, even the states. The only crumbs that Justice Kavanaugh throws are that:
[O]ther forums remain open for examining the Executive Branch’s arrest policies. For example, Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process, and Senate confirmations, to name a few ... . And through elections, American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions.
I then again quoted from Justice Alito’s dissent:
[The majority] holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare [ — withholding funds, impeachment and removal, etc.]
[T]he majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception ... . [It] instead, requires a President to “take Care that the Laws be faithfully executed.”
I exclaimed in exasperation: “OK, so Congress can withhold funds from the offending law enforcement agency (defund ICE!) or bring impeachment proceedings against President Biden or Secretary Mayorkas. And in a year and a half, voters are free to express their anger at the ballot box. Thanks, Justice Kavanaugh!”
This, in a nutshell, is the impetus behind Secretary Mayorkas’ impeachment: The impeachment power is the only formidable mechanism left standing to protect states from the harm, and Congress from the emasculation, resulting from Secretary Mayorkas’ refusal to abide by congressional immigration enforcement mandates. As the House Committee on Homeland Security’s impeachment report explained:
Secretary Mayorkas may think he has been given a blank check by the Supreme Court. But he cannot cash that check unless Congress lets him. That is why it is the duty of the House to impeach Secretary Mayorkas and the duty of the Senate to remove him from office.
The Supreme Court has collapsed the decision tree here down to only two branches: Congress can let the executive branch ignore and rewrite federal statutory immigration law, or Congress can impeach the high executive branch official who is doing so. If our Constitution is to be upheld, the legislative branch will prevail, and the statutes it enacts will be respected. If the Constitution is to be disregarded, and abandoned by its duly-elected representatives in the House and Senate, the States will be left to the mercy of an unelected bureaucrat.
The House-passed articles of impeachment against Secretary Mayorkas put this imperative for Congress to act forcefully on display. The first article states that:
[I]n United States v. Texas … the United States Supreme Court heard a case involving Alejandro N. Mayorkas’s refusal to comply with certain Federal immigration laws that are at issue in this impeachment. The Supreme Court held that States have no standing to seek judicial relief to compel Alejandro N. Mayorkas to comply with certain legal requirements contained in the Immigration and Nationality Act. However, the Supreme Court held that “even though the federal courts lack Article III jurisdiction over this suit, other forums remain open for examining the Executive Branch’s enforcement policies. For example, Congress possesses an array of tools to analyze and influence those policies [and] those are political checks for the political process.” One such critical tool for Congress to influence the Executive Branch to comply with the immigration laws of the United States is impeachment. The dissenting Justice noted, “The Court holds Texas lacks standing to challenge a federal policy that inflicts substantial harm on the State and its residents by releasing illegal aliens with criminal convictions for serious crimes. In order to reach this conclusion, the Court ... holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’ power to employ the weapons of inter-branch warfare ...”. As the dissenting Justice explained, “Congress may wield what the Solicitor General described as ‘political ... tools’ — which presumably means such things as ... impeachment and removal.”
As U.S. Rep. Mark Green (R-N.C.), chairman of the House Committee on Homeland Security, has written, “[T]he decision made clear that the Supreme Court views Congress as fully justified in responding to an executive branch official’s lawlessness through the impeachment process.”
Congress’s Enforcement Mandates Undermined by U.S. v. Texas
As the impeachment report noted, “In United States v. Texas, the Supreme Court agreed to hear a case involving the very same unilateral suspensions of the federal immigration laws by Secretary Mayorkas that are at issue in this impeachment.” The two enforcement mandates at issue in U.S. v. Texas constitute two of the five statutory mandates that the first article of impeachment contends Secretary Mayorkas willfully refuses to comply with:
Throughout his tenure as Secretary of Homeland Security, Alejandro N. Mayorkas has repeatedly violated laws enacted by Congress regarding immigration and border security. ... His refusal to obey the law is not only an offense against the separation of powers in the Constitution of the United States, it also threatens our national security and has had a dire impact on communities across the country. Despite clear evidence that his willful and systemic refusal to comply with the law has significantly contributed to unprecedented levels of illegal entrants, the increased control of the Southwest border by drug cartels, and the imposition of enormous costs on States and localities affected by the influx of aliens, Alejandro N. Mayorkas has continued in his refusal to comply with the law, and thereby acted to the grave detriment of the interests of the United States.
Alejandro N. Mayorkas engaged in this scheme or course of conduct through the following means:
...
(4) Alejandro N. Mayorkas willfully refused to comply with the detention mandate set forth in section 236(c) of [the INA], requiring that a criminal alien who is inadmissible or deportable on certain criminal and terrorism-related grounds “shall [be] take[n] into custody” when the alien is released from law enforcement custody. Instead of complying with this requirement, Alejandro N. Mayorkas issued “Guidelines for the Enforcement of Civil Immigration Laws”, which instructs [DHS] officials that the “fact an individual is a removable noncitizen ... should not alone be the basis of an enforcement action against them” and that DHS “personnel should not rely on the fact of conviction ... alone”, even with respect to aliens subject to mandatory arrest and detention pursuant to section 236(c) .., to take them into custody. In Texas v. United States … the United States Court of Appeals for the Fifth Circuit concluded that these guidelines had “every indication of being ‘a general policy that is so extreme as to amount to an abdication of ... statutory responsibilities’” and that its “replacement of Congress's statutory mandates with concerns of equity and race is extralegal ... [and] plainly outside the bounds of the power conferred by the INA.”
(5) Alejandro N. Mayorkas willfully refused to comply with the detention mandate set forth in section 241(a)(2) of [the INA], requiring that an alien ordered removed “shall [be] detain[ed]” during “the removal period”. Instead of complying with this mandate, Alejandro N. Mayorkas issued “Guidelines for the Enforcement of Civil Immigration Laws”, which instructs DHS officials that the “fact an individual is a removable noncitizen ... should not alone be the basis of an enforcement action against them” and that DHS “personnel should not rely on the fact of conviction ... alone”, even with respect to aliens subject to mandatory detention and removal pursuant to section 241(a)…. [Emphasis added.]
As to those mandates, Justice Kavanaugh stated in his opinion that:
Texas and Louisiana sued … [contending that] the Guidelines contravene two federal statutes that purportedly require the Department to arrest more criminal noncitizens pending their removal. First, the States contend that for certain noncitizens, such as those who are removable due to a state criminal conviction, §[236(c) of the Immigration and Nationality Act (“INA”)] says that the Department “shall” arrest those noncitizens and take them into custody when they are released from state prison. Second, §[241(a)(2) of the INA], as the States see it, provides that the Department “shall” arrest and detain certain noncitizens for 90 days after entry of a final order of removal.
Purportedly require? The states contend? Justice Kavanaugh seems oh so dubious about the states’ contention that the INA says that DHS “‘shall’ arrest [certain] noncitizens and take them into custody when they are released from state prison”. The INA literally says that DHS “shall take into custody [such] alien … when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense”. And Justice Kavanaugh seems oh so dubious about the states’ contention that the INA provides that DHS “‘shall’ arrest and detain certain noncitizens for 90 days after entry of a final order of removal”. The INA literally says that “[d]uring the removal period”, DHS “shall detain the alien”, referring to the removal period as “a period of 90 days” after “an alien is ordered removed” within which DHS “shall remove the alien from the United States”.
I hope you caught Justice Kavanaugh’s putting scare quotes around the word “shall”. As Megan Garber described in The Atlantic:
Scare quotes … are identical to standard quotation marks, but do precisely the opposite of what quotation marks are supposed to do: They signal irony, and uncertainty. They suggest words that don’t quite mean what they claim to. “Question,” they say. “Doubt,” they dare. They are, as Greil Marcus recently said, “a writer’s assault on his or her own words.” They signal — really, they celebrate — epistemic uncertainty. They take common ground and suggest that it might, but only just “might,” be made of quicksand.
Just a month earlier, Justice Kavanaugh wrote a concurring opinion in Sackett v. Environmental Protection Agency that was joined by the three justices nominated by Democrat presidents — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. For standing up for wetlands, Kavanaugh received many plaudits from the media. MSNBC proclaimed that “Kavanaugh Just Went Against His Fellow Conservative Justices — For Good Reason” and Slate announced that “Samuel Alito’s Assault on Wetlands Is So Indefensible that He Lost Brett Kavanaugh”. Interestingly, Kavanaugh’s concurrence was based largely on his contention that the majority opinion had blatantly failed to adhere to the plain meaning of the statute’s words! He wrote:
[W]e may not rewrite “adjacent” to mean the same thing as “adjoining,” as the Court does today.
[T]he Court’s atextual test — rewriting “adjacent” to mean “adjoining” — will produce real-world consequences for the waters of the United States and will generate regulatory uncertainty. I would stick to the text. There can be no debate, in my respectful view, that the key statutory term is “adjacent” and that adjacent wetlands is a broader category than adjoining wetlands. To be faithful to the statutory text, we cannot interpret “adjacent” wetlands to be the same thing as “adjoining” wetlands.
I could only wish that Justice Kavanaugh wouldn’t rewrite “shall” to mean the same thing as “may” when it comes to congressional demands that the executive branch enforce our immigration laws. And I could only wish that Justice Kavanaugh would stick to and be faithful to the statutory text setting forth such demands.
Is Detention at Issue in U.S. v. Texas?
Justice Kavanaugh states in his opinion that “this case does not concern a detention policy, so we do not address the issue here.” He explains in a footnote that:
This case concerns only arrest and prosecution policies, and we therefore address only that issue. As to detention, the Solicitor General has represented [DHS’s] Guidelines do not affect continued detention of noncitizens already in federal custody … . See … Solicitor General [at oral argument]: “the Guidelines govern only decisions about apprehension and removal, whether to charge a non-citizen in the first place ... . the[y] don’t have anything to do with continued detention”[]; Guidelines Memorandum ...“This memorandum provides guidance for the apprehension and removal of noncitizens” … “We will prioritize for apprehension and removal noncitizens who are a threat to our national security, public safety, and border security.”
So, why does the first article of impeachment link detention mandates to the Supreme Court’s decision?
Justice Kavanaugh should have understood that U.S. v. Texas did in fact involve detention mandates. As Justice Alito wrote, “the majority acknowledges [that] the States in this case challenged noncompliance with the §[241](a)(2) detention mandate in addition to the §[236](c) arrest requirement”. In fact, Justice Kavanaugh’s opinion itself stated that “§[241](a)(2), as the States see it, provides that the Department ‘shall’ arrest and detain certain noncitizens for 90 days after entry of a final order of removal.” (Emphasis added.) Alito continued:
The Court points to what it sees as a “represent[ation]” by the Solicitor General that the Final Memorandum does not affect “continued detention of noncitizens already in federal custody.”… But as JUSTICE BARRETT notes, the Government argued that when it chooses not to remove someone under the Final Memorandum’s guidance, its mandatory detention obligation ends — meaning it is asserting discretion over continued detention … .
In any event, arrest policy cannot be divided from detention policy in this case. When a person is arrested, he or she is detained for at least some period of time, and under the detainer system involved here, “arrest” often simply means transferring an immigrant from state custody to federal custody.
And, as Justice Barrett explained in her concurrence (joined by Justice Gorsuch), the states weren’t even seeking to mandate prosecution (prosecution in this context meaning the government’s seeking through a civil proceeding the removal of an alien). The states, however, were seeking that certain aliens be detained:
[T]he States do not seek the prosecution of any particular individual — or even any particular class of individuals … . In fact, they disclaim any interest in the prosecution or nonprosecution of noncitizens … . They acknowledge that [§236(c)(1)’s] detention obligation “only applies until” the Government makes “a decision whether or not to prosecute.”… And they readily concede that if the Government decides not to prosecute, any detention obligation imposed by §[236](c)(1) “immediately ends.”… The States make similar concessions with respect to §[241(a)(2)]. They maintain, for example, that [the provision] applies “only where the United States has used its prosecutorial discretion to bring a notice to appear, to prosecute that all the way to a final ... order of removal.”… But if the Government for any reason “choose[s] to discontinue proceedings,” the alleged detention obligation does not attach… . [Emphasis in original.]
The upshot is that the States do not dispute that the Government can prosecute whomever it wants. They seek, instead, the temporary detention of certain noncitizens during elective removal proceedings of uncertain duration.
However, since in Justice Kavanaugh’s mind the case did not involve detention mandates, the case did not involve detention mandates — as he did author the majority opinion. As Supreme Court Justice Robert Jackson wrote in a concurring opinion in 1953:
[R]eversal by a higher court is not proof that justice is thereby better done. There is no doubt that, if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.
In any event, Justice Kavanaugh made clear in his opinion that he would most likely have reached the same conclusion regarding standing, or the lack thereof, in the context of detention mandates. His opinion stated that “policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies.” (Emphasis in original). But, as Justice Alito pointed out, Kavanaugh “provides no explanation for this (noncommittal) distinction”. Alito added that “As best I can tell, the majority’s distinction between arrest and detention is made solely to avoid the obvious inference that our decision last Term in Biden v. Texas should have dismissed the case for lack of standing, without analyzing ‘the Government’s detention obligations.’”
Thus, it stands to reason that “Kavanaugh’s Standing Rule” applies to detention mandates.
Does the Contention that the Supreme Court Stands Behind Impeachment as Remedy for Lack of Standing Withstand Counterarguments?
1. Why Didn’t Justice Kavanaugh’s Majority Opinion Mention Impeachment?
A lot has been made of the fact that Justice Kavanaugh’s opinion does not actually contain the word “impeachment” — and therefore that the decision does not stand for the proposition that impeachment is an appropriate remedy for lack of standing. Professor Deborah Pearlstein at Princeton University’s School of Public and International Affairs testified at the House Committee on Homeland Security’s January 18, 2024, hearing on the Mayorkas impeachment. At the hearing, she stated that:
Justice Alito said in his lone dissent that impeachment, along with funding cutoffs and others, were among the potentially available remedies that Congress has. The majority opinion, none of the other eight justices, including all of the justices appointed by … former president [Donald Trump], mentioned impeachment in that context.2
U.S. Rep. Glenn Ivey (D-Md.) similarly pointed out multiple times that only Justice Alito’s dissent, not Justice Kavanaugh’s majority opinion and not the concurring opinions of the President Trump nominated Justices Gorsuch and Barrett, mentioned impeachment. Ivey argued at the House Committee on Homeland Security’s markup of the Mayorkas articles of impeachment that:
I refer the Chairman and the Committee to the actual opinion that was written by Justice Kavanaugh, which is the one that has the force of law... . [Y]our reference to impeachment being the only tool available ... . This is where [Justice Kavanaugh is] talking about options since there’s no standing, what can Congress do instead. “For example, Congress possesses an array of tools … oversight, appropriations, the legislative process and Senate confirmation” and through elections. He does not mention impeachment. In fact, I’m not sure I saw impeachment mentioned anywhere in the opinion that he wrote ... . The articles of impeachment rely on Justice Alito’s language. He’s the sole dissenter in this case. [link]3
[T]he Supreme Court said that these tools [are] available, they do not mention impeachment. Justice Kavanaugh’s opinion does not mention impeachment as a tool for resolving political dispute ... . The Trump wing of the Supreme Court is in the majority and the concurrence on this. [link] 4
<[T]he Chairman and others have made the point that the only remedy available is impeachment ... . [T]hat’s not what Justice Kavanaugh wrote. Kavanaugh wrote “Congress possesses an array of tools to analyze and influence those policies”, the immigration policies we’re talking about, “oversight, appropriations, the legislative process, Senate confirmation”, and he also mentions elections. He does not mention impeachment. ... To say that impeachment is the only way to resolve these disputes with respect to immigration issues and you’re basing it on this case. You are basing it on the Alito dissent, which was … 8-1, where he references immigration in passing. But that’s not in the majority opinion. [link]5
[A]s Justice Kavanaugh wrote, appropriations, Senate confirmation, he listed out several things. I’ve read it four times, I’m not going to read it again. Impeachment was not one of those. So, you know, if you’re going to move forward with impeachment, you’ve got the votes to do it, but please don’t act like you’ve got a constitutional obligation to do it, because you don’t. There are other options you can pursue, you’re choosing not to do that. That’s your right, but you are not required to impeach. [link]6
However, while Justice Kavanaugh does not explicitly mention impeachment in his opinion, he clearly understands it to be one of the arrows that Congress has in its quiver to remedy the states’ lack of standing. The best evidence for this can be found in the oral argument the Supreme Court held prior to issuing its decision in U.S. v. Texas. David Savage wrote in the Los Angeles Times that “At oral arguments, Kavanaugh often asks lawyers on both sides about the consequences of a decision for one side or other.” That was certainly the case here.
As the Committee on Homeland Security’s report explained:
[D]uring the oral argument in United States v. Texas, Justice Kavanaugh … made a remarkable statement about the position of the United States Solicitor General. As the Solicitor General’s official website states, ‘‘The Solicitor General determines ... the positions the government will take before the [Supreme] Court.’’ The Solicitor General speaks for the Biden Administration and presents its official legal positions to the Supreme Court … . Justice Kavanaugh explicitly said that he understood the Solicitor General’s position to be that Congress would be “forced’’ to impeach Secretary Mayorkas. Justice Kavanaugh, speaking to the Solicitor General, said ‘‘I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if it — if some administration comes in and says we’re not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced, and — and that’s forcing — I mean, I understand your position, but it’s forcing Congress to take dramatic steps, I think.” So in the understanding of the Justice who authored the majority opinion in United States v. Texas, it was the official position of the Biden Administration’s top lawyer charged with stating its official position to the Supreme Court that Congress be forced to impeach Secretary Mayorkas.
And as Chairman Green stated on the House floor:
What is unique here in the history of impeachments is that the Supreme Court, just this summer, denied the affected States judicial review on many of these issues, but with the understanding that the result of doing so could mean the impeachment of a Secretary. In oral argument, Justice Kavanaugh explained how he understood the position of the Biden administration if judicial review was denied ... . In response, the Biden administration’s solicitor general agreed, saying: ‘‘Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive.’’ Today’s Articles of Impeachment outline exactly that; a dramatic abdication of statutory responsibility by Secretary Mayorkas has occurred.
Chairman Green has also written that:
During the[ oral] argument[], Biden-appointed Solicitor General Elizabeth Prelogar made a stunning claim, asserting that no state, individual, or business has standing to challenge an administration’s decision to, as a blanket matter, not enforce any particular law. When pressed by Justice Brett Kavanaugh if states and individuals were precluded from challenging this lack of enforcement, Prelogar responded, “That’s correct … but the framers intended political checks in that circumstance. … Congress has tools at its disposal as well.”… “[I]n the face of a dramatic abdication of statutory responsibility” by the executive branch, such steps “would be warranted.” In other words, it is the Biden administration’s own legal position that impeachment is a proper remedy for “dramatic abdication[s] of statutory responsibility.”
Here is the full context of the discussion between Justice Kavanaugh and Solicitor General Elizabeth Prelogar at the oral argument:
Justice Kavanaugh asked Prelogar:
[O]n standing, if a new administration comes in and says we're not going to enforce the environmental laws, we're not going to enforce the labor laws, your position, I believe, is no state and no individual and no business would have standing to challenge a decision to, as a blanket matter, just not enforce those laws, is that correct?
Prelogar’s response was “That's correct under this Court's precedent”! Justice Kavanaugh certainly put some loaded words in Prelogar’s mouth — “no state and no individual and no business would have standing to challenge a decision to, as a blanket matter, just not enforce [the environmental or the labor] laws.” And rather than protesting that Justice Kavanaugh was putting words in her mouth, words that did not represent what she meant, Prelogar adopted the words as her own. And these words weren’t referring to prosecutorial discretion in individual cases, or to setting enforcement priorities, but indeed to a blanket refusal to enforce.
Prelogar then elaborated:
[B]ut the framers intended political checks in that circumstance. You know, if — if an administration did something that extreme and said we're just not going to enforce the law at all, then the President would be held to account by the voters, and Congress has tools at its disposal as well.
Justice Kavanaugh immediately asked Prelogar “and what are those tools?”, elaborating that:
Because you mentioned earlier this would be extraordinary. But I think Congress in 1996 and today, but in 1996, which is the relevant date, thought the immigration problem in the United States was extraordinary and the lack of enforcement to the degree that Congress as of 1996 wanted. And so that's why they toughened the laws and constrained the executive's discretion. At least that would be, I think, the position. So, if courts aren't going to be able to enforce those congressional mandates, what are the exact tools that Congress has to make sure that the laws are enforced in the United States?
Preloger responded:
Well, I think that Congress obviously has the power of the purse. It can make the executive's life difficult with respect to its decisions about how to appropriate funds. Congress has oversight powers. These were the same kinds of considerations that the Court cited in Raines versus Byrd when it was confronted with some of these same separation of powers, structural, constitutional considerations … and identified the fact that Congress wasn't powerless to act.
Next comes the key exchange. Justice Kavanaugh pressed Prelogar:
But — but I think your position is, instead of judicial review, Congress has to resort to shutting down the government or impeachment or dramatic steps if it — if some administration comes in and says we're not going to enforce laws or at least not going to enforce the laws to the degree that Congress by law has said the laws should be enforced, and — and that's forcing — I mean, I understand your position, but it's forcing Congress to take dramatic steps, I think.
Prelogar responded:
Well, I think that if those dramatic steps would be warranted, it would be in the face of a dramatic abdication of statutory responsibility by the executive. And there's a reason we don't see that throughout our history because of those political checks that prevent the executive from taking those kinds of actions. And it would be like saying, if the President decided to pardon every federal criminal and release them all, obviously, no one could sue about that, but there's a reason that doesn't happen.
Kavanaugh concluded the exchange by stating:
Right, but there's also — just to press on this a little more, you — you make a big point in your brief this — this is unusual, this is rare, but it’s unusual for Congress to mandate particular exercises of enforcement or prosecutorial discretion. Most statutes … do not say the executive shall detain, shall prosecute. And I think that's why this is an unusual situation, but I take your point on that.
Not only did Justice Kavanaugh specifically include impeachment in the array of tools available to Congress, but he indicated that impeachment’s appropriate use wasn’t limited to instances of a blanket refusal to enforce the law, but also to instances where an administration was “not going to enforce the laws to the degree that Congress by law has said the laws should be enforced”.
Ivey tried to diminish the importance of the Kavanaugh-Prelogar exchange by arguing during the markup of the Mayorkas articles of impeachment that:
The fact that impeachment was raised during the debate, during the oral argument … and [Justice Kavanaugh] had the conversation with the Solicitor General but didn’t choose to expressly mention it in his opinion. ... I think is instructive. Why would he leave it out if he thought it was such a prime [garbled].7
The answer is that Justice Kavanaugh’s opinion stated “For example, Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process, and Senate confirmations, to name a few”. (Emphasis added.) As U.S. Rep. Carlos Gimenez (R-Fla.) stated in response to Ivey:
[Justice Kavanaugh’s opinion] says “for example” and it says “to name a few”… . And he just named a few… . [I]t doesn’t exclude impeachment. It does not, because he clearly writes “for example” and he clearly likes to “name a few”, just a few, that’s what he wrote.8
This is verbatim. This is what [Justice Kavanaugh] wrote. “For example, Congress possesses an array of tools … oversight, appropriations, legislative process, and Senate confirmations, to name a few.” Not exclusive. To name a few. ... This whole thing about Justice Kavanaugh saying that somehow impeachment’s out of here, is a false flag, it’s baloney. It starts out with for example and then it says to name a few. ... Your side has been saying, the Democrats have been saying, “that’s it, that’s all we can look at”. That’s not true at all.9
In addition, it is not accurate to say that Justice Kavanaugh didn’t touch on impeachment in his opinion. Immediately after stating “For example, Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process, and Senate confirmations, to name a few,” Kavanaugh states “Cf. Raines, 521 U.S., at 829; Lincoln, 508 U.S., at 193.”10
Well, what did the two cited Supreme Court decisions state? In Raines v. Byrd, in 1997, the Court stated on the page referenced by Kavanaugh that:
The Tenure of Office Act, passed by Congress over the veto of President Andrew Johnson in 1867, was a thorn in the side of succeeding Presidents until it was finally repealed at the behest of President Grover Cleveland in 1887… . It provided that an official whose appointment to an Executive Branch office required confirmation by the Senate could not be removed without the consent of the Senate… . In 1868, Johnson removed his Secretary of War, Edwin M. Stanton. Within a week, the House of Representatives impeached Johnson … . One of the principal charges against him was that his removal of Stanton violated the Tenure of Office Act. … At the conclusion of his trial before the Senate, Johnson was acquitted by one vote. [Emphasis added.]
So, Kavanaugh was in his opinion referring to impeachment as one of the array of tools available to Congress. After listing some examples of available tools, he immediately cited to another case’s discussion of impeachment. And in Lincoln v. Vigil, in 1993, the Court stated on the page referenced by Kavanaugh that “we hardly need to note that an agency's decision to ignore congressional expectations may expose it to grave political consequences”. And there is no graver political consequence (other than losing an election) than impeachment.
Finally, in reference to the concurring justices who had been nominated by Republican presidents, there was no need for Justice Gorsuch’s concurrence (joined by Justices Barrett and Thomas) to discuss impeachment as a tool of congressional self-empowerment. Why? Because the concurrence was grounded in the conclusion that the states’ lack of standing was caused by ... Congress itself! As the concurrence explains:
[T]he jurisdictional problem the States face in this case isn’t the lack of a “judicially cognizable” interest or injury … . The problem the States face [in establishing standing] concerns something else altogether — a lack of redressability.
To establish redressability, a plaintiff must show from the outset of its suit that its injuries are capable of being remedied “‘by a favorable decision.’” ... Ordinarily, to remedy harms like those the States demonstrated in this suit, they would seek an injunction. The injunction would direct federal officials to detain aliens consistent with what the States say the immigration laws demand. But … that form of relief is not available to them.
Why is it not available to them? The concurrence explained:
It is not available because of [§242(f)(1) of the INA]. There, Congress provided that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of” certain immigration laws, including the very laws the States seek to have enforced in this case. If there were any doubt about how to construe this command, we resolved it in Garland v. Aleman Gonzalez [in 2022]. In that case, we held that [§242(f)(1)] “prohibits lower courts from ... order[ing] federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions.” ... Put simply, the remedy that would ordinarily have the best chance of redressing the States’ harms is a forbidden one in this case.
Forbidden by Congress (assuming the correctness of Justice Gorsuch’s statutory analysis)! Congress is not in need of tools to override itself.
2. Why Doesn’t Congress Utilize Its Other Available Political Tools?
Professor Pearlstein stated during her testimony that:
In the opinion folks are so fond of citing in the recent Supreme Court cases, while impeachment is certainly one power that Congress has, oversight, appropriations, the legislative process, confirmations, withholding funds and of course, centrally, elections, are all tools that are available to Congress and to the American people to affect change here.11
Why did the House of Representatives utilize impeachment rather than those other tools? Well, the first article of impeachment states “impeachment is Congress’s only viable option”. But why is it the only viable option? The Committee on Homeland Security’s impeachment report explained why:
The majority opinion … went on to state ‘‘Congress possesses an array of tools to analyze and influence those policies — oversight, appropriations, the legislative process, and Senate confirmations, to name a few.’’ … [A]ll of them are clearly non-solutions in this case. To take them one at a time:
Oversight. The House Committee on Homeland Security has conducted extensive oversight, as described in this report, and as a result, the Committee sees clearly the same thing the courts have seen, namely that Secretary Mayorkas is not enforcing and will not enforce the federal immigration laws.
Appropriations. If Congress appropriates more money to DHS to enforce the law as written, that money will be entirely wasted since the Secretary has clearly demonstrated he will not enforce the federal immigration laws as written. If Congress appropriates less money, the Secretary will then have the excuse — which he does not have now — that the Department is underfunded, and therefore can’t enforce the law as written. If Congress simply strikes appropriations for the salary of the Secretary, the Secretary can just claim he’s going to continue failing to enforce the law as written because now he’s not getting paid to enforce the law.
The legislative process. To what end could the House of Representatives now use the legislative process when the Secretary has clearly demonstrated he will not enforce the federal immigration laws as written in statutes already enacted?
Senate confirmations. The Senate cannot confirm a new Secretary until the old one has vacated the position. And that is exactly what the House of Representatives is being forced to do here through the impeachment process.
The report concluded that:
In sum, the ‘‘political tools’’ the majority opinion lists are wholly ineffective non-solutions in this case. The Supreme Court has left the House with only one alternative ‘‘political tool’’ that makes sense in order to promptly address the crisis at the border: impeachment is the only political tool the American people have now, through their elected Representatives in the House, to enforce their immigration laws.
And as Chairman Green has argued:
[I]mpeachment is the only reasonable recourse left for Congress. Of the other options cited by Kavanaugh, “oversight, appropriations, the legislative process, and Senate confirmations” are far less viable in the present case.
My committee, for example, has conducted extensive oversight, and yet Mayorkas continues to refuse to follow immigration laws, even after being exhorted to do so. Giving DHS more money will further facilitate the mass catch-and-release policies that brought us here while appropriating less provides the secretary a disingenuous excuse for refusing to comply with the law. The legislative process is no use when the secretary is disobeying the laws already on the books — laws that also work well when properly enforced, as demonstrated by past administrations of both parties. And the Senate cannot confirm a new secretary until the previous one is removed.
Every tool available to Congress to remedy Mayorkas’s disregard for the law has been closed off — except for impeachment.
A failure to impeach Mayorkas would send the signal to this and future administrations that officials can simply ignore the law with impunity, knowing that the only recourse is through replacing an entire presidential administration.
3. Did Justice Alito Actually Endorse Congress’s Resort to Impeachment?
Stephen Dinan wrote in the Washington Times that:
[Columbia University School of Law Professor Philip] Bobbitt said Republicans are misreading the court’s arguments. For one thing, Justice Alito’s opinion was a sole dissent, and he wasn’t embracing impeachment as an alternative. He was trying to hold it back.
“I say it’s a travesty because it completely turns Alito’s opinion on its head,” he said. “He’s not coming out for warfare.”
But Bobbitt misses the point. Of course, Justice Alito was not coming out in favor of inter-branch warfare. He wrote, after all, that:
[T]he majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception.
[T]he Court … holds that the only limit on the power of a President to disobey a law like the important provision at issue is Congress’s power to employ the weapons of inter-branch warfare — withholding funds, impeachment and removal, etc. I would not blaze this unfortunate trail.
Relegating Congress to … disruptive measures [such as impeachment] radically alters the balance of power between Congress and the Executive, as well as the allocation of authority between the Congress that enacts a law and a later Congress that must go to war with the Executive if it wants that law to be enforced.
Rather, Justice Alito wanted the states to have the opportunity to pursue their grievances in federal court:
If States are also barred from bringing suit … they are powerless to defend their vital interests. If a President fails or refuses to enforce the immigration laws, the States must simply bear the consequences. That interpretation of executive authority and Article III’s case or controversy requirement is deeply and dangerously flawed.
I would simply apply settled law, which leads ineluctably to the conclusion that Texas has standing.
But, as Alito concluded, “[T]he Court now says that no party injured by this policy is allowed to challenge it in court.” So, in the terrible situation into which Justice Alito believed the Court had placed Congress and the states, “disruptive measures” such as impeachment were the “only limit on the power of a President to disobey a law”.
The House Committee on Homeland Security clearly understood that Justice Alito was offering impeachment as the least bad of the unappetizing options the Supreme Court had left Congress and the states. U.S. Rep. Dan Bishop (R-N.C.) noted during a January 10, 2024, hearing of the committee concerning the Mayorkas impeachment that Justice Alito “said, I don’t think this is a wise decision for us to make, but that is the decision the majority made, and if you want the law to be followed, you’re going to have to impeach somebody”.12 And Chairman Green has written that:
Justice Samuel Alito, in his dissent, further pointed out that the majority’s ruling effectively meant “the only limit on the power of a President to disobey a law like the important provision at issue is Congress’ power to employ the weapons of inter-branch warfare,” and that based on Prelogar’s arguments, “impeachment and removal” were legitimate courses of action.
The Kavanaugh Court
It was widely assumed that the appointment of Brett Kavanaugh to the Supreme Court would shift the Court dramatically to the right. Adam Liptak wrote in the New York Times prior to Justice Kavanaugh’s confirmation hearings that:
Most Supreme Court appointments are in a way inconsequential. A conservative replaces a conservative, a liberal replaces a liberal, and the court’s basic direction is unchanged.
That is not the case with the nomination of Judge Brett M. Kavanaugh, who[] ... is considerably more conservative than the justice he would replace, Anthony M. Kennedy.
But there is a more subtle, and important, reason that President Trump’s pick of Judge Kavanaugh could remake the court. His confirmation would result in a rare replacement of the court’s swing justice, moving Chief Justice John G. Roberts Jr. — a much more reliably conservative vote than Justice Kennedy — to the court’s ideological center.
It has been more than 80 years since a chief justice was the swing vote.
Liptak did relay the greatest line ever regarding a Supreme Court justice (that was not drunkenly uttered by John Riggins). He quoted Justin Driver, law professor at the University of Chicago Law School, as saying “John Roberts would be the least swinging swing justice in the post-World War II era”.
In any event, Liptak continued:
That would be a major break from the role that Justice Kennedy, a moderate conservative who was appointed by President Ronald Reagan, played for years on the court. Justice Kennedy at times voted with the court’s four-member liberal wing on issues like abortion, affirmative action, gay rights and the death penalty.
“Justice Kennedy’s departure is likely to lead to far more dramatic change in the court than the departure of Justice O’Connor did,” said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University.
“The key is,” [Gornstein] said, “the many areas where Kennedy was with the liberals in 5-4 decisions: abortion, affirmative action, gay and lesbian rights, criminal punishments and allowing proof of discrimination based on disparate impact. In all of these areas of law, Kavanaugh replacing Kennedy likely will mean a significant change.”
“A dominant narrative of the Supreme Court during the last five decades has been the apostasy of Republican-appointed justices,” Professor Driver said. “Kavanaugh’s confirmation would almost certainly spell the end of that story line, and cement a generation of G.O.P. constitutional orthodoxy.”
Well, Justice Kavanaugh may not vote with the Court’s liberal wing on issues like “abortion, affirmative action, gay rights and the death penalty”. But on other issues, most certainly including immigration, reports of the death of the apostasy story line have been greatly exaggerated. David Savage wrote in the Los Angeles Times last October that:
The crucial battles these days within the Supreme Court are among its six conservatives, not between them and the three liberals.
[T]he outcome in close cases now turns most often on one justice: Brett M. Kavanaugh.
Kavanaugh has shown he is not always a predictable vote, especially for the most conservative positions. He often joins Chief Justice John G. Roberts Jr. to hold the middle, and sometimes joins liberals to form a surprising 5-4 majority.
As the Supreme Court opens a new term … where the conservative majority goes next depends in no small part on whether Kavanaugh aligns with Roberts, a conservative who prefers narrow rulings and gradual steps, or with Justices Clarence Thomas and Samuel A. Alito Jr., who have long sought to push the law further right.
[T]wice Kavanaugh played a key role in upholding Biden’s immigration policies against lawsuits brought by Texas Republicans.
Conclusion
With his prevailing opinion in U.S. v. Texas, Justice Kavanaugh put Congress in the position of having to bring impeachment proceedings against Secretary Mayorkas. As Chairman Green has written:
When the highest court in the land has closed the door to legal challenges of unlawful executive actions, only Congress can act. And when the executive branch’s callous disregard for the law and the separation of powers threatens constitutional integrity, impeachment is the only fitting tool we can wield.
This is certainly not a scenario many people would have imagined being foisted on Congress by a Kavanaugh Court.
It is not clear whether the U.S. Senate will try Secretary Mayorkas, let alone convict him of the articles of impeachment approved by the House. But, whatever the outcome, the House acted out of a sense of constitutional duty. As Chairman Green stated during the House Committee on Homeland Security’s markup of the Mayorkas articles:
[W]e have exhausted all other options and our duty as members of Congress compels us to exercise our constitutional duty and defend this separate but equal branch of government. At the beginning of this Congress each of us took an oath to support and defend the Constitution of the United States against all enemies foreign and domestic and that we would well and faithfully discharge the duties of the office. This is the same oath I took many years ago in the army.
One can only hope that the Senate will approach this grave matter with the same devotion to the Constitution.
End Notes
1 In full disclosure, I note that, during an unpaid leave of absence from the Center, I had the great privilege of serving for a few months as a special counsel for Chairman Mark Green of the House Committee on Homeland Security to assist with the impeachment inquiry and proceedings against Secretary Mayorkas.
2 Professor Pearlstein’s comment begins at 37:24.
3 Rep. Ivey’s comment begins at 51:40.
4 Rep. Ivey’s comment begins at 6:50.
5 Rep. Ivey’s comment begins at 10:24.
6 Rep. Ivey’s comment begins at 1:36:16.
7 Rep. Ivey’s comment begins at 3:47:07.
8 Rep. Gimenez’s comment begins at 3:47:30.
9 Rep. Gimenez’s comment begins at 3:46:02.
10 What does “Cf.” mean? The legal citation reference authority The Bluebook explains that “Cited Authority supports a proposition different from the main proposition but sufficiently analogous to lend support. Literally, ‘cf.’ means ‘compare.’ The citation’s relevance will usually be clear to the reader only if it is explained.” The Bluebook: A Uniform System of Citation 59 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).
11 Professor Pearlstein’s comment begins at 1:30:00.
12 Rep. Bishop’s comment begins at 1:38:22.