Republicans eager to impeach a Biden administration official have rallied around a new phrase to justify the rarely used move, accusing President Biden and Homeland Security Secretary Alejandro Mayorkas of “dereliction of duty.”
The term, borrowed from the military, allows a court martial to punish service members who fail to obey orders or carry out their duties.
But experts say the GOP’s basis for removing either man from office is an odd fit for impeachment, which requires demonstrating high crimes or misdemeanors.
“It sounds quasi-official — it has a sort of military ring to it. But it’s not as though high crimes and misdemeanors and dereliction of duty go together. … It’s not traditionally one of the impeachment concepts that you would find in the panoply of presidential mistakes,” said Claire Finkelstein, a law professor at the University of Pennsylvania who specializes in national security law and democratic governance.
“They’re looking for a phrase that will kind of draw people in because it sounds semi-official, but will not actually require them to say something true and correct, like, ‘The President has actually done such and such,’” she added.
The impeachment resolution for Biden introduced by Rep. Lauren Boebert (R-Colo.) accuses Biden of dereliction of duty and abuses of power in connection with how he has handled the border.
“Since his first day in office, President Biden has trampled on the Constitution through his dereliction of duty under Article 2, to take care that the laws be faithfully executed. Instead of enforcing our immigration laws, he has lawlessly ignored them,” Boebert said on the House floor this month before Republicans voted to refer the measure to committee.
Each of the four impeachment resolutions targeting Mayorkas similarly accuses him of violating his oath of office by failing to enforce immigration laws.
The House Homeland Security Committee, which has been tasked with an investigation that would be used as the basis for any impeachment effort undertaken by House Judiciary, likewise kicked off its five-step plan with a phase dedicated to reviewing dereliction of duty.
“The blatant disregard for the Constitution of the United States, which states that the United States Congress passes the laws and the executive branch executes those laws, is just scratching the surface to the harm Secretary Mayorkas’s dereliction of duty has done to our country,” said Mark Green (R-Tenn.), the committee’s chairman, in a press conference earlier this month kicking off the formal investigation.
“Mayorkas’s dereliction of duty has placed the safety of Americans’ second to his own personal agenda,” Green added.
For Democrats, the GOP complaints over how the administration is applying — or failing to apply — the laws passed by Congress show the underlying dispute is a policy matter and therefore insufficient grounds for impeachment.
“Dereliction of duty is something that they have created out of whole cloth,” said Rep. Dan Goldman (D-N.Y.), who served as a lead counsel to Democrats in the first impeachment of former President Trump before being elected to Congress.
“It has never been a grounds for impeachment. It is not a high crime and misdemeanor, and it is essentially arguing that they don’t like the way that President Biden and Secretary Mayorkas have been handling their jobs, which, unfortunately for them, is the consequence of elections,” Goldman said.
Impeachment proceedings have been used four times for a president and once for a cabinet secretary.
There are different interpretations of what constitutes a high crime or misdemeanor, and Finkelstein said while impeachment can be used for “bad acts that are not criminal, very often the impeachment charges could also be charged as crimes.”
“President Biden and Secretary Mayorkas haven’t violated the law. And I suspect that members of the GOP and Congress know that full well, and so they don’t want to use any term that suggests that there may be a legal violation here. And so they’re using this sort of made-up term that has a quasi-military frame to sound vaguely official, but it’s really nothing that corresponds to what we would understand from the history of impeachment as a high crime and misdemeanor as the framers would have conceived,” she said.
The dereliction of duty argument has taken a greater focus in recent weeks amid waning numbers of people arriving at the border. Earlier this year, many in the GOP argued that Mayorkas failed to follow a law that requires perfection at the border to achieve “operational control.”
Republicans have become more focused on arguing that Biden officials have violated immigration laws, particularly those dealing with detaining and releasing migrants that arrive at the border.
They also see a wave of fentanyl deaths as a failure to secure the border, though the vast majority of fentanyl that enters the U.S. is believed to come through ports of entry.
The Department of Homeland Security has argued Mayorkas has acted within his authority because the U.S. simply doesn’t have the capacity to detain every person that seeks to enter the country, while parole laws allow DHS to permit some migrants to enter the U.S. while they await a determination in immigration court as to securing a more permanent legal status. The department has repeatedly encouraged Congress to take action to update immigration laws.
The White House, meanwhile, dismissed Boebert’s resolution as “staging baseless political stunts.”
“What you would need in order to move forward with impeachment is some finding that they have violated the law,” Goldman said.
“So the notion that he’s violated his oath of office is just simply saying that he in their view is not following the law, but what it amounts to without any evidence — and they have none — is just a disagreement about how we’re dealing with the influx of migrants into this country who are largely escaping completely devastated governments [and] catastrophic situations,” he said, adding that the Biden administration has tried to deal with that “in a humane way.”
When asked about the legal underpinnings of dereliction of duty by The Hill, Green pointed to the statutes governing the military and the Uniform Code of Military Justice (UCMJ).
“The United States is not secure. His job is to secure the United States. He’s failed. That’s a dereliction of his duty,” Green said, noting the oath he took when entering West Point.
“Mayorkas’s oath is the same, right? It’s not to the geography of America. It’s not to the flag. It’s to the Constitution, the idea of America and to the way the Constitution orchestrates how the government is to work.”
The roots in the Uniform Code of Military Justice could be problematic for making a case.
“Neither Biden nor Mayorkas are subject to the UCMJ because they’re both civilians,” Finkelstein said. “Dereliction of duty as a military term does not apply to the Secretary of Homeland Security, nor does it apply to the president.”
Impatience, however, is growing among some in the Republican Party.
Lawmakers have introduced 11 impeachment resolutions for various Biden administration officials in the past two months.
“I would hope that it would be this year — and very soon,” Boebert told reporters last week.
Rep. Adam Schiff (D-Calif.), who served as an impeachment manager for Trump’s first impeachment, dismissed the efforts as another example of Republicans “dragging down the institution of Congress.”
“I am concerned that as they always do, they use a process that is properly applied as a precedent to abuse the process. But this is all about ingratiating yourself among MAGA members and Trump followers and it’s disgraceful,” he said.
“It’s consuming the time of Congress to keep going through these right-wing exercises designed to gain Trump’s favor.”
Source: The Hill