Senate Parliamentarian Rejects Democrats’ Third Immigration Plan in Budget

Sen. Charles Schumer (D-N.Y.) (C) joins Senate Minority Whip Richard Durbin (D-Ill.) (L) and Senate Majority Leader Harry Reid (D-N.V.) following the weekly Senate Democratic policy luncheon at the U.S. Capitol in Washington, on Nov. 17, 2015. (Chip Somodevilla/Getty Images)

Senate Parliamentarian Elizabeth MacDonough has struck another blow to Democrats’ ambitions to provide amnesty to millions of illegal aliens in the Build Back Better budget legislation.

Because Democrats are using the complicated and rules-laden reconciliation process, the scope of the legislation is far more constrained than a normal piece of legislation.

The reconciliation process, first formulated in the 1970s in response to the revelations of the Watergate scandal, allows certain types of budget measures to go through the Senate without facing the 60-vote filibuster. Because Republicans would certainly filibuster this budget legislation, Democrats have had no choice but to use the process.

But given its extreme power relative to normal Senate measures, its provisions are subject to the approval or disapproval of the parliamentarian, the Senate’s nonpartisan referee. While the reconciliation process is being used, all provisions must satisfy current Parliamentarian MacDonough as being within the original budget-related scope of the process.

Specifically, Democrats’ budget legislation is subject to the “Byrd Rule,” named after the late Sen. Robert Byrd (D-W.Va.), which states that all provisions in reconciliation must have a “more than merely incidental effect” on federal spending and revenue. The rule was first proposed and approved to weaken the process, which had increasingly started being used for non-budget-related provisions.

Since they began work on the budget legislation, Democrats have made clear that they have the intention of trying to put comprehensive immigration reform into the measure.

The first two immigration plans Democrats proposed, which could have given millions of illegal aliens amnesty for entering the country against federal law, were rejected by MacDonough under the Byrd rule.

Now, she has dealt another blow to Democrats, rejecting their third, significantly-weaker immigration plan.

This third plan, called “plan C” by Democratic proponents, would have given 6 million to 7 million illegal aliens five-year work and travel permits, essentially a form of temporary amnesty.

Democratic supporters of the plan, such as Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Dick Durbin (D-Ill.), have argued for weeks in favor of the provision with the parliamentarian, but Democrats were ultimately unable to sway the former immigration attorney turned-parliamentarian.

Sens. Catherine Cortez Masto (D-Nev.), Ben Ray Luján (D-N.M.), and Alex Padilla (D-Calif.) released a joint statement after the parliamentarian announced this most recent decision.

“We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act,” the statement reads.

But when Durbin, one of the strongest supporters of immigration reform in the budget, was asked whether Democrats had a “plan D” in the wake of this decision, he responded, “Not at this point.”

Outside of Capitol Hill, the decision also has ruffled feathers with some private immigration organizations.

Mike Fernandez, co-chair of the American Business Immigration Coalition, is advocating for unchecked immigration in order to “grow jobs, strengthen our economy, and benefit all American families.” The organization is run by several major business moguls, whose bottom line grows with the increased labor supply furnished by immigration.

“It’s time for Senate leaders to retake control of the legislative process,” Fernandez said, calling on Senate Democrats to ignore the parliamentarian’s ruling. “The Senate has received some bad advice that needs to be disregarded.”

Others were far happier with the decision.

The Federation for American Immigration Reform (FAIR), a nonpartisan group that emphasizes the economic and social dangers of unchecked immigration, applauded the parliamentarian.

“[FAIR] applauds Ms. MacDonough for her integrity and ensuring that longstanding rules of the Senate were not subverted to achieve partisan political ends,” wrote Matthew Tragesser, FAIR’s communications manager.

“Sadly, Senate Democrats, who hold the majority in that body solely because Vice President Kamala Harris casts the tie-breaking vote, have made repeated attempts to use budget reconciliation to make an end run around normal legislative procedures. We hope that this, her third rejection of these tactics, will finally put an end to their efforts to abuse the process in order to reward illegal aliens.”

Some Democrats, including progressive Rep. Alexandria Ocasio-Cortez (D-N.Y.), have argued that the Senate should use the so-called “nuclear option,” a rarely used process that allows the majority party to change Senate rules through a simple majority vote, to override the parliamentarian.

But this plan, which will certainly see renewed calls in the wake of MacDonough’s decision, may not fly with Sen. Joe Manchin (D-W.Va.), who has expressed disagreement with changing Senate rules even for more pressing issues such as the debt ceiling. And the maverick West Virginian has already explicitly rejected overriding the parliamentarian’s decisions.

With mounting troubles for the budget legislation coming from Manchin and Democrats having no plan as yet for a new immigration plan, it’s unclear what the future holds for Democrats’ ambitions to radically reform the U.S. immigration system under the partisan reconciliation process.