This week, the House Homeland Security Committee passed articles of impeachment against Department of Homeland Security (DHS) Secretary Alejandro Mayorkas on a party-line vote. To make the case for impeachment, the Committee majority has issued five impeachment reports and conducted two committee hearings, all dominated by the false claim that the border is “open.” These efforts have featured blatant scapegoating of immigrants for serious problems confronting the nation, including the fentanyl crisis.
The Committee majority has profound policy disagreements with the current administration’s immigration and border management, as do we. Robust congressional oversight of DHS—a sprawling agency we have called to dismantle–is appropriate. But impeachment is an inappropriate and dangerous mechanism to use as a weapon in policy disputes and has no place where, as here, no “Treason, Bribery, or other high Crimes and Misdemeanors” are even conceivably on the table.
Impeachment is a critical tool for accountability in limited circumstances, not a sledgehammer for grandstanding about policy disputes
Government officials and judges occupy positions of public trust and significant power. When an officer abuses that power by committing “treason, bribery, or other high crimes and misdemeanors,” the Constitution provides impeachment to hold them to account and remove them from office.
But because it removes officers selected by our elected representatives, impeachment is constitutionally circumscribed and is not appropriate as a means of political theater to express policy differences. As documented by scholars such as Daniel Ziblatt and Steven Levitsky in “How Democracies Die,” the erosion of norms limiting the use of tactics intended to be reserved for extreme cases, such as impeachment, is one of the hallmarks of rising authoritarianism and a danger to democracy.
Impeachment must be reserved to address officials’ significant wrongdoing and should not be conflated with legitimate Congressional oversight or to prosecute policy or political fights. If Congress repeatedly abuses the impeachment power, it will lead to an erosion of constitutional norms and bring the regular functions of government to a standstill.
If Congress repeatedly abuses the impeachment power, it will lead to an erosion of constitutional norms and bring the regular functions of government to a standstill.
The articles of impeachment accuse Secretary Mayorkas of failing to fulfill his statutory responsibility to secure the border because, for example, he terminated the construction contracts on the ineffective border wall. They do not allege that he exceeded his authority to do so, much less that he has committed an impeachable offense.
The case against Secretary Mayorkas relies heavily on DHS’s alleged failure to heed statutory detention mandates. As explained in an ACLU amicus brief to the Supreme Court, however, every administration has exercised prosecutorial discretion regarding deportation and detention decisions. The government cannot possibly detain millions of immigrants at a time, and never has. The articles of impeachment also fault Mayorkas for using the President’s parole authority to allegedly circumvent a detention mandate. Yet for decades, presidents of both parties have used parole authority to help people affected by humanitarian disasters find safety in the U.S.
The Committee’s assertions about immigration are factually wrong
Contrary to some members’ assertions, the fentanyl crisis has little to do with migration. Data shows that most fentanyl coming into the U.S. is smuggled by U.S. citizens at ports of entry. According to a Cato Institute study, only 0.02 percent of people arrested by the Border Patrol for crossing illegally into the U.S. possessed any fentanyl. 88 percent of convicted fentanyl traffickers in fiscal year 2022 were U.S. citizens according to U.S. Sentencing Commission data.
They also allege that the U.S. stopped enforcing the laws and threw open the border. The reality is far, far different. Due to climate change, war, and a range of other global factors, record numbers of people are seeking safety in the United States and in many countries around the world. Customs and Border Patrol enforcement actions have increased dramatically as a result. Indeed, the ACLU has sued the Biden administration for illegally restricting the ability of families seeking a new life in the U.S. to apply for asylum.
Our immigration and border management systems need to be modernized, including by increasing resources in processing at ports of entry and in immigration courts and USCIS to address the enormous case backlogs, not to mention by creating a pathway to citizenship for Dreamers and other long-term U.S. residents who are contributing members of U.S. communities. Year after year, however, Congress fails to legislate solutions.
Lawmakers should think about the long-term health of our democratic institutions
As a matter of policy, the ACLU generally takes no position on the impeachment of political leaders. We do, however, warn against using impeachment as a tool for settling partisan scores or debating legitimate policy disputes. In the case of Secretary Mayorkas, we did not endorse his nomination and will not lobby members of Congress to vote for or against his impeachment. But we urge members of both parties to consider the long-term impact of their votes on the functioning of our democratic institutions when they invoke their impeachment powers.
Alabama Has Executed A Man With Nitrogen Gas Despite Jury’s Life Verdict
On January 25, the state of Alabama executed Kenneth Smith using nitrogen hypoxia, subjecting him to inhale pure nitrogen through a mask until he suffocated. Despite state claims that it would be a painless death, witnesses reported Mr. Smith shook, convulsed, writhed, and gasped for minutes until he was pronounced dead at least 22 minutes after the execution began, though just how long it took is unknown since Alabama closed the execution curtain before the official time of death.
Earlier this month, United Nations human rights experts warned that the untested execution method might result in a painful and humiliating death. Moreover, it is likely to constitute torture, violating international human rights treaties ratified by the U.S. Ahead of the execution, the U.N. High Commissioner for Human Rights, Volker Türk, urged Alabama state authorities to cancel the execution.
Veterinary scientists, who have carried out laboratory studies on animals, have even largely ruled nitrogen gas out as a euthanasia method due to ethical concerns. Authorities in the U.S. and Europe have issued guidelines discouraging its use for most mammals, citing potential distress, panic, and seizure-like behavior.
Mr. Smith shouldn’t have even been on death row. In 1996, a jury of his peers voted 11-1 for life in prison for his role in a 1988 killing. However, the sentencing judge imposed the death penalty anyway. If Mr. Smith were tried today, that could not happen, as Alabama no longer permits a judge to override a jury’s decision to sentence someone to life without parole.
In 2022, the Alabama Department of Corrections attempted to execute Mr. Smith by lethal injection but failed to find a suitable vein, calling it off after hours of needle insertions.
Killing Mr. Smith, or any other person, by nitrogen gas is cruel and inhumane. Plans to do so should have been abandoned for those reasons alone – but there are others. Nitrogen gas presents a grave danger to prison staff, incarcerated people, and the public. The Alabama Department of Corrections is aware of the risks, evident in requiring Mr. Smith’s spiritual adviser to sign a waiver acknowledging he could be at risk of gas exposure for for being with Mr. Smith at the execution.
A recent tragedy at a Gainesville, Georgia poultry plant underscores the dangers of nitrogen gas. Following a leak that filled a freezer room, five workers entering it collapsed and died. A sixth worker was pronounced dead at the hospital. After evacuating 130 workers, an additional 13 people, including four first responders in safety gear, required hospitalization and intensive care.
The tragedy in Georgia is no outlier. The U.S. Chemical Safety Board reports an annual average of 8 deaths and 5 injuries from nitrogen exposure. History, science, and common sense tell us that storing and using nitrogen in Alabama prisons, or elsewhere, is a ticking time bomb. The question isn’t whether nitrogen gas will kill staff and incarcerated people; the question is when.
Governor Kay Ivey had the authority to stop Mr. Smith’s execution by nitrogen gas; or any other method proposed — but she did not exercise that power. As a broader consequence, other states are now considering following Alabama’s dangerous and irresponsible path.
We believe the death penalty should be abolished in Alabama and in the U.S. entirely. The justifications for ending it go beyond the cruel, dangerous, and tortuous methods employed. It’s a barbaric practice that too often condemns wrongly-convicted individuals to die and disproportionately kills people of color, people with low-income, people with intellectual disability, people living with mental illness, and others who are over-targeted for arrest and incarceration.
The U.S. must stop inventing new and more heinous methods of execution, and put an end to it once and for all.
