No, President Biden Should Not Be Impeached For Lax Border Security

Last night, Laura Ingraham asked Sen. Tom Cotton (R, Ark.) about the options in dealing with the influx of undocumented persons over the southern border. Sen. Cotton raised the possibility of impeachment. I have had this question raised with me on a number of occasions in the last year. I believe that President Joe Biden can be legitimately blamed for his handling of the crisis at the border but I do not believe that he could be legitimately impeached for those failures.

As a threshold matter, one should acknowledge that there have long been periods of crisis at the border. Other presidents have dealt with a border that has remained porous and fluid. However, I do believe that the Administration has lacked transparency and, frankly, honesty in dealing with the crisis. Biden’s own policies likely have contributed to this increase in illegal crossings.

When asked about the border on “The Ingraham Angle” on Tuesday Sen. Cotton said about impeachment:

No Laura, I don’t think it’s out of the realm of possibility because of all of the abuses of the Biden administration. I think what the Department of Homeland Security has done to undermine American sovereignty, to open up our borders to undercut wages and jobs for American workers is probably the most egregious…and they’re open about it. [DHS] Secretary Alejandro Mayorkas has said it in speeches…that being illegally present in the country is no longer even a priority for deportation. They admit these things publicly.

Clearly, nothing in a political sense is “out of the realm of possibility” in Congress. However, an impeachment on the border crisis would be, in my view, an abuse of the impeachment powers and a dangerous precedent for our constitutional system.

In fairness to Sen. Cotton, he only stated that there might be a basis for “investigation” on possible impeachment.  I would strongly discourage the use of impeachment as the basis for such an investigation. Congress has oversight responsibilities and powers that should be used to investigate the crisis and how the Administration has addressed it. While impeachment investigations are considered more robust, there are ample oversight powers to fully investigate the handling of the crisis.

Biden could clearly be impeached if he committed certain offenses in relation to the border. For example, if he committed the crime of perjury (like Clinton) or obstructed Congress, there would be a cognizable basis for impeachment. However, we have not seen evidence to support such an allegation.

The scope of the impeachment standard was a matter of passionate disagreement in both both the Clinton and Trump impeachments. I testified in both impeachments as a constitutional expert on the standard (here and here).

During the Constitutional Convention, George Mason wanted to include a broad scope for impeachable offenses, covering everything that could “subvert the Constitution.” He failed. The Framers rejected terms ranging from “corruption,” obtaining office by improper means, betraying one’s trust to a foreign power, “negligence,” “perfidy,” “peculation” and “oppression.” All these were rejected along with “maladministration” and kept off the Constitution’s list of impeachable offenses.

An impeachment over the border crisis would be based on a type of maladministration or negligence theory. The danger of such a broad, ill-defined standard is obvious. It would convert the impeachment clause into a type of vote of no confidence and allow the removal of a president whenever the opposing party gains enough votes in the two houses. That is why I previously disagreed with calls for impeachment over Afghanistan and other such debacles. It is also the reason the Framers rejected these broader standards.

Many presidents have been viewed as “failures” by critics but that it not what impeachment is designed to address.

Parliamentary systems, like Great Britain’s, allow for “no confidence” motions to remove prime ministers. Parliament can pass a resolution stating “That this House has no confidence in Her Majesty’s Government.” But that’s not our system, and it’s doubtful that the members of Congress calling for Trump’s impeachment would relish a parliamentary approach: When such a vote succeeds, the prime minister isn’t necessarily the only politician to go. If the existing members of parliament can’t form a new government in 14 days, the entire legislative body is dissolved pending a general election.

The Framers were certainly familiar with votes of no confidence, but despite their general aim to limit the authority of the presidency, they opted for a different course. They saw a danger in presidents being impeached due to shifts in political support and insulated presidents from removal by limiting the basis for impeachment and demanding a high vote threshold for removal. There would be no impulse-buy removals under the Constitution. Instead, the House of Representatives would have to impeach and the Senate convict (by two-thirds vote) based on “Treason, Bribery, or other high Crimes or Misdemeanors.”

When we make someone president, we give them tremendous power and tremendous discretion in wielding that power. Such discretionary judgments are protected for even low level federal officials. The Federal Tort Claims Act (FTCA) contains a major exception called the the discretionary function exception to protect officials from lawsuits for poor judgments. If a president uses poor judgment, you can refuse a second term or use the checks and balances of the system to counteract his mistakes.

Past presidents have made breathtaking mistakes from the Bay of Pigs to wars like Libya, Iraq and Afghanistan. However, those judgments have not been deemed high crimes and misdemeanors. Otherwise, you create the basis for the impeachment of virtually any president.

I believe that the Democrats did great harm to the impeachment process in the use of snap impeachments and poorly drafted articles against Trump. The Republicans should not follow the same casual approach to the constitutional standard or process.

172 thoughts on “No, President Biden Should Not Be Impeached For Lax Border Security”

  1. I see a substantial difference between faulty judgement and deliberate treachery. Yes, what the Biden Regime has done on the border–and in many other areas as well–has been subversive and entirely intentional. A thorough investigation, I am sure, would bear that out. At this juncture and based upon what my lying eyes see, Biden should be impeached. I look forward to the intensive investigations and, if willful misconduct and even subversion can be soundly proven, the puppet must go…

  2. Can a president only be impeached for high crimes and misdemeanors committed while in office, or will past crimes qualify as grounds for impeachment?

    There is a very serious investigation into Hunter Biden’s laptop, on whether Joe Biden sold political favors and access to foreign nations. Would that qualify, or do the crimes have to occur while in office?

    I do not think incompetence qualifies as a high crime. Biden ran on the Left ticket, which is pro-illegal immigration. Biden’s open borders and sneaking plane loads of illegal aliens across the country is in keeping with the Democrat Party.

    I find it tiresome when anyone who votes Democrat complains about illegal aliens, high taxes, high gas prices, empty shelves, decimating trucking fleets and medical staff due to firing from vaccine mandates, biological males wiping women out of their own sports divisions, or anything else the Democrat Party causes. Yet most of my Democrat friends and family have begun to complain about these very things. I am absolutely certain most of them will keep voting Democrat.

    If anyone keeps voting Democrat, then it’s idiotic for him or her to keep complaining about the consequences. Want a different outcome? Then vote responsibly.

    1. A quick refresher on law.

      In a society of laws, the laws must be obeyed.

      Abraham Lincoln egregiously violated the laws and society.

      Slavery must have been ended through legal means including advocacy, boycotts, divestiture, etc.

      The law must have removed Lincoln from office and sent him to prison.

  3. USC Art2,SEc3..”..he shall take Care the Laws be faithfully executed,…” seems to explicitly and unambiguously “shall” assign POTUS with responsibility to execute laws made by Congress. Why is not Biden’s willful & blatant failure/refusal to execute/enforce Immigration (& other) laws not grounds for impeachment as violation of Art 2, sec 3?

  4. All of the Democrats songs are sad, as if they were written by Leonard Cohen at 4 in the morning at the end of December.

    -Special shout out to John Kass @ johnkassnews.com

      1. (Oops, I goofed. I guess it was Stephen Sondheim who wrote “Send in the Clowns.” I just remember Judy Collins singing Cohen’s songs…sorry)

  5. I think the cows already left the barn on creating unreasonable grounds for impeaching any president. So, in order to protect our country, I am willing for ANY president (since you don’t have to have many qualifications to be one) be impeached for breaching his oath of office. He (Biden) is to enforce our laws and he’s not. Obama the same, ignored the law with DACA. Impeach Biden ASAP and send a message to the next poor Dem that succeeds him that their A&$ will suffer the same fate if they don’t uphold the law and the constitution. If we have laws that are unconstitutional, we have a process to change them. We didn’t elect politicians to ignore laws, but to make them. Get with it or get done…talking to you Joe. Quit messing with your jello at lunch and get the message pal.

  6. The Real Issue Is ‘Not’ Border Security

    Climate Change Is Driving Migrations All Over The World

    The odd weather phenomenon that many blame for the suffering here — the drought and sudden storm pattern known as El Niño — is expected to become more frequent as the planet warms. Many semiarid parts of Guatemala will soon be more like a desert. Rainfall is expected to decrease by 60 percent in some parts of the country, and the amount of water replenishing streams and keeping soil moist will drop by as much as 83 percent. Researchers project that by 2070, yields of some staple crops in certain regions will decline by nearly a third.

    Scientists have learned to project such changes around the world with surprising precision, but — until recently — little has been known about the human consequences of those changes. As their land fails them, hundreds of millions of people from Central America to Sudan to the Mekong Delta will be forced to choose between flight or death. The result will almost certainly be the greatest wave of global migration the world has seen.

    https://www.nytimes.com/interactive/2020/07/23/magazine/climate-migration.html
    ………………………………………………………

    Billionaire donors, most notably the Koch Network, have prevented the Republican Party from recognizing Climate Change as a genuine issue. Consequently Republicans are incapable of recognizing the causes of mass migration coming from Central America. But the truth is that nations like Guatemala are on the front lines of Climate Change and the effects are upending the lives of modest farmers.

    1. Bwahahahaha! Those brainiacs at Davos need to figure out how mass migration will happen with every nation in lockdown.

      This is the plan by the World Economic Forum to encourage governments to use all the levers they use during lockdown, enforced business closures, 23 hour lockdowns, restricting how far you can go from your home and ridiculously aggressive policing tactics, in order to tackle climate change,” says Dean.

      However, what has angered mainstream media gatekeepers is that Dean has dared to point out an obvious connection – that the same people promoting the ‘global pandemic’ narrative and advocating for destructive lockdowns are the very same people pushing wildly speculative climate change theories and calling for new “climate lockdowns”, supposedly to ‘save the planet.’

      “I have only ever repeated the words of Klaus Schwab at the World Economic Forum, the words of Prince Charles, the words of the head of the United Nations Guterres and many other very powerful and influential individuals who insist we must go straight from COVID lockdowns to climate lockdowns.
      https://youtu.be/nL1HuTYcoC4
      https://21stcenturywire.com/2021/03/02/the-great-reset-klaus-covid-and-climate/

      1. Olly, should we pretend the perma-frost in Siberia isn’t thawing? Should we pretend wildfires in the American west aren’t more common? Should we pretend Greenland isn’t melting??

        How long should pretend continue?

        1. “Should we pretend wildfires in the American west aren’t more common?”

          Then practice good forestry management, e.g., by clearing the tinder.

          Environmentalists oppose good forestry management. It’s almost as if they want more wildfires. I wonder what their motive is.

          1. Sam, Koonin’s book Unsettled shows how much of the data coming from the left has been distorted. Koonin deals item by item.

    2. So they’re migrating to a non-climate change place?

      That doesn’t even pass the laugh test.

      “As their land fails them . . .”

      It’s not land that’s failing them. It’s their statist politicians.

    3. Anonymous–The Real Issue is NOT Border Security–You are just kidding right? The illegals getting off the planes in (insert city name here) in the middle of the night courtesy of Biden, et al, don’t appear to be anxiety stricken over CLIMATE CHANGE. You know the old saying, I was born at night, but not last night! Clearly to anybody with brain cells, these people are economic refugees looking for the US government to give them freebies. They are fleeing the gangs that cannot shoot straight as in their own feckless ruling classes who cannot seem to create a reasonably good economy with what they have.

  7. The latest post is “Reasonable People Can Disagree.”

    My father taught me to respect the office of the President of the United States. The occupants come and go. The same should be true for all political office holders. Unfortunately that is no longer the case.

    What has occurred is a malignancy in recent decades wherein political activists have inserted themselves in key positions of leverage and corruption.

    Mark Zuckerberg strategically spent an 450,000,000 dollars in key voting districts of several states using political groups and sophisticated geo targeting and geo fencing algorithms gained from social media to impact the 2020 vote. It was barely legal and time will tell if laws were broken, but it was unethical. What if the shoe were on the other foot?

    George Soros, who will soon depart the land of the living due to his age, funds legions of activist groups who in turn create chaos. One example is local and state elections for DAs and state attorneys who refuse to enforce the law. Now gangs, thieves and violent criminals have a green light to commit crimes knowing they will face little to no legal consequences.

    It is a tangled mess. The consumer of news now must be extra wary and suspicious of anything said in the media. Traditional sources of news are eroding and self imploding because they often do not tell the whole truth. They sound like the teacher in a Charlie Brown cartoon.

    Regular folks are hurting from the lockdowns and now the rising prices and volatility in the economy. The citizens are not to problem. It is the hateful groups who are fomenting the division. We may not be suffering from an invading army in the traditional sense but America is under full scale attack.

    Does the current occupant of the White House, President Biden care? He was recently asked a gotcha question about inflation. Instead of taking the opportunity to reassure the American people, he replied to the reporter’s question (thinking he could not be heard) “Inflation is an asset. We need more inflation, you stupid son of a b**ch!”

    He is disconnected from the American citizen and this was his “Let Them Eat Cake” moment. He’s rich and I doubt he’s filled his tank, paid a heating bill or gone grocery shopping lately.

    The only encouraging thing about 2021 was watching the judicial branch and local government slow this administration’s agenda. The same was true during the last administration. Perhaps that is how it should be so that the government can get out of the people’s way and let them succeed.

    Reasonable people can disagree and still play in the sandbox together. Oh if this were the case with the offices of the government. Now it is about the pursuit of raw and unbridled power.

    1. E.M. Well said and right on. This crap with Zuckerberg and the targeted-to-dem-states “grants from CTCL must stop if we’re to have any confidence in our electoral system again. But, do you hear any Republicans raising the issue? Nope. I think they’re all on the same side and it’s scary.

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