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By a margin of 1 vote the House voted to impeach the Homeland Security secretary

LEILA FADEL, HOST:

For the first time in almost 150 years, a cabinet secretary has been impeached. By a margin of just one vote, the House voted to impeach Homeland Security Secretary Alejandro Mayorkas last night. Republicans accused Mayorkas of failing to comply with federal law and blame him for a surge in unlawful border crossings during the Biden administration. The Democrats call the whole thing a political sham.

Joining me now to talk about this is Michael Gerhardt. He's a professor at the University of North Carolina School of Law who focuses on constitutional conflicts between presidents and Congress. Good morning. Thanks for being on the program.

MICHAEL GERHARDT: Good morning. Thanks for having me.

FADEL: I want to start just with your initial reaction here. No sitting cabinet minister has been impeached since 1876. What kind of precedent does this set?

GERHARDT: This sets a horrible precedent. This is the first time in American history in which the House has impeached anyone without any evidence at all. This is clearly a political stunt, clearly an effort on the part of the Republican leaders in the House to do what Donald Trump wants, which is to simply turn impeachment into a joke or to use it as a means by which to harass President Biden during a presidential election year.

FADEL: Now, Republicans accuse Mayorkas of, quote, "willfully and systemically refusing to comply with federal immigration law." In your view, there is no merit to this charge?

GERHARDT: I don't believe there's any merit. Mayorkas has not only testified numerous times, but he's clearly following the Biden policy on immigration and, in fact, was negotiating a deal with the Senate on immigration policy and got it through the Senate - at least initially. That doesn't suggest he's engaging in any kind of serious misconduct, which is exactly what should be the basis for impeachment.

FADEL: So as the Democrats point out, Mayorkas - and as you just pointed out - Mayorkas is just implementing Biden policy, they say. So is impeachment being used here as a political tool by one party against another?

GERHARDT: Yes. It's clearly being used. In fact, we know that from the fact that the speaker, Mike Johnson, announced dead on arrival the deal that had been negotiated in the Senate on immigration policy. And, in fact, that deal gave Republicans a lot of what they want. This is not a majority in the House that's prepared to legislate or do serious business in Congress. They want to turn impeachment - they want to dilute it of any meaning, but they also want to use impeachment as a way to hurt President Biden during an election year, and that's just transparently partisan.

FADEL: So you mentioned earlier that you see this as a horrible precedent-setting event. I mean, what do you see in the future going forward?

GERHARDT: If the House were to follow this example, which I don't think it will in the long term, then the House would simply impeach anybody with whom it has a political difference. The House tried to do that with Andrew Johnson with the Reconstruction policy, and Johnson fell one vote short of conviction in the Senate. And now we have a situation in which, if the Republicans had their way, the trial in the Senate would be putting Biden's immigration policy on trial. Elections are well suited to deal with policy differences. Impeachment is not supposed to be based on policy differences. In fact, the framers rejected the term maladministration as a basis for impeachment, meaning the framers rejected basing impeachment on an administration that others disagree with.

FADEL: So you're saying basically a policy difference is being settled with impeachment, which, in your view, is a very dangerous precedent. Could this all backfire on Republicans?

GERHARDT: Well, it has the potential of backfiring because it demonstrates, I think, those who voted for the impeachment of Mayorkas are not serious about immigration policy. They'd rather hurt Biden than solve the border crisis.

FADEL: As an expert on constitutional conflicts between presidents and Congress, what should be happening over what really everyone acknowledges is a crisis at the border?

GERHARDT: Well, there was a bill that was seriously negotiated - a bipartisan bill that came out of the Senate that, again, gave Republicans largely what they would have wanted in terms of immigration policy. That's the appropriate way to deal with this - is through legislation. Impeachment is not a legitimate means by which to deal with policy disagreement.

FADEL: Constitutional law professor Michael Gerhardt. Thank you for your time and your insights.

GERHARDT: Thank you very much. Transcript provided by NPR, Copyright NPR.

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