In our pages, Ken Buck argues that “Secretary Mayorkas’s poor job performance is not an impeachable offense.” His core reasoning is as follows:

The border mess was preventable, and President Biden and his key personnel, including Secretary Mayorkas, deserve full blame for the open border.

But the standard for impeachment is not a failed policy — no matter how reckless or unpopular it may be. The standard for impeachment, which the Constitution lays out in clear language, is “treason, bribery, or other high Crimes and Misdemeanors.” Maladministration, incompetence, and a blatant disregard for the American people’s wishes are notably absent from the list.

This is a defensible argument, although, given the non-justiciability of impeachment in our system, I’m not entirely sure that I agree with it.

For a start, “high Crimes and Misdemeanors” are, in practice, whatever Congress says they are. Certainly, Congress ought to define and apply those terms in a sober manner. Perhaps Buck is. But, if it doesn’t, there is no hard mechanism of review — and never has been. In this sense, Congress’s impeachment power is similar to the president’s pardon power; its proper use is contingent upon the good behavior of those to whom it has been given. One can argue, as Buck does, that a given employment does not comport with one’s interpretation of the Constitution. But a “violation”? That word goes too far to me. In Federalist 65, Alexander Hamilton notes that impeachment necessarily covers “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” and are “thus of a nature which may with peculiar propriety be denominated political.” If that character is unavoidable — and if, as the Founders decided would be the case, the legal questions that are raised cannot be superintended by the courts — then the power must inevitably be more open-ended than Buck submits.

Neither am I convinced by the particulars. If one follows Buck’s argument to its conclusion, one must surely determine that Congress would be out of line if it were to impeach an executive officer for failing to do his job? Buck characterizes Mayorkas’s sins as “maladministration, incompetence, and a blatant disregard for the American people’s wishes.” I assume that this is because the Founders rejected a “maladministration” standard for impeachment. But a better description of the administration’s conduct, in my estimation, is: “a failure to execute the laws.” Is that not impeachable, after a certain point? Article II requires the president to “take Care that the Laws be faithfully executed.” Are we to suppose that, if he does not do this, Congress is obliged to keep him in place nevertheless? Again, we can argue about whether this particular case rises to the level. But if a president were consistently to decline to honor congressional law, would the legislature really be “violating” the Constitution if it got rid of him? I’m not so sure.

As it happens, I also oppose the impeachment of Mayorkas, but, in my case, it is because I think that he’s the wrong target of Congress’s ire. Like many conservatives, I believe that the president is — and ought to be — responsible for everything that happens in the branch that he heads up, and this applies to immigration policy as much as to anything else. Ultimately, there are only two options that are consistent with our Constitution: Either (1) Mayorkas is doing the president’s will, as is his duty, or (2) Mayorkas is freelancing in contravention of the president’s wishes. I have seen no evidence whatsoever that (2) is the case. And if it is not the case, then the problems at the border must lie squarely at the feet of President Biden. And if the problems at the border lie squarely at the feet of President Biden, then it is President Biden, not his subordinates, who must be impeached. When one makes this argument, one is usually told that an impeachment of Biden “would fail.” That’s true, but it’s also irrelevant. If Biden is the villain, then it is Biden who must be held accountable. Anything less is theater.