Since the beginning of September, Senate Democrats have been trying to convince the Senate’s nonpartisan referee, the parliamentarian, to allow them to include amnesty for illegal aliens in their reconciliation bill. The parliamentarian shot down the first effort in mid-September; on Wednesday, Democrats were disappointed again after the parliamentarian denied their second push.
The blessing of the current parliamentarian, Elizabeth MacDonough, will be necessary because of the peculiar track Democrats are using in the hopes of passing their $3.5 trillion budget that has not received any Republican support.
Specifically, they are using the reconciliation process, a parliamentary procedure added to the Senate’s rule in the early 1970s. The process allows some types of budget bills to pass through the deliberative upper chamber with only a simple majority, bypassing filibuster by opponents altogether. Ultimately, what is allowed under this process is up to MacDonough, whose job it is to protect the rights of both parties.
“How many years have we all complained that the immigration system in America is broken and needs to be fixed?” he asked, adding that the last comprehensive immigration reform to come from Congress was passed 35 years ago, signed by President Ronald Reagan.
Under the standing rules of the reconciliation process, provisions in reconciliation bills must have an impact on the federal government’s spending and revenues that is more than “merely incidental.” Durbin argued that the immigration reform “does have a cost associated with it” and was applicable under reconciliation rules.
Democrats to Go to ‘Plan C’
The first effort by Democrats would have allowed around 8 million illegal aliens already in the country to be eligible for amnesty. This second effort was less lofty, and simply sought to change the date that illegal immigrants would be eligible for a pathway to citizenship.
This effort was again denied, a move in line with MacDonough’s track record. During her time in the position, MacDonough has not been shy to kill the priorities of either parties that she considered to be outside the scope of reconciliation.
For example, in 2017, Republicans tried to add a provision to the Tax Cuts and Jobs Act—passed through the reconciliation process—that would have repealed restrictions on churches, charitable foundations, and universities that forbade such nonprofits from becoming politically involved or endorsing candidates.
After Democrats took back the majority, MacDonough also put restrictions on what they were permitted to do. In February, the parliamentarian ruled against including a $15 minimum wage in a CCP (Chinese Communist Party) virus relief package proposed by President Joe Biden.
In both cases, the majority party tried to convince MacDonough that the provisions were budget-related to little avail.
Sen. Bob Menendez (D-N.J.), a proponent of using reconciliation to change immigration law, called MacDonough’s decision “unfortunate.” He explained, “I disagree with … the original principle she’s working from,” referencing her no-excuses attitude to reconciliation.
Still, Menendez indicated that despite the failure of their first two efforts, Democrats would still be making a third push and go to “plan C.” The senator was coy discussing the details, telling a reporter, “It’s for me to know and you to find out.”
Menendez did say, however, “if we don’t have any pathway to some form of status adjustment for the undocumented” that he wouldn’t support provisions designed to help businesses. “We’re not gonna take care of businesses and not take care of the 11 million,” Menendez said of groups of illegal immigrants, including former President Barack Obama’s “Dreamers,” temporary protected status (TPS) holders, agricultural laborers, and essential workers, among others..
But without the acquiescence of the parliamentarian, Menendez and his colleagues will have little choice, given MacDonough’s unilateral control over what is and is not acceptable for reconciliation.
A key immigration focus for Democrats in Congress and the president has been the status of so-called “Dreamers.” This group is comprised of people who entered the United States illegally as children and were granted amnesty under Deferred Action for Childhood Arrivals (DACA) a controversial executive order signed by President Barack Obama. Under Democrats’ initial proposal to MacDonough, millions of Dreamers would have received a pathway to citizenship.
The Biden administration has signaled that this is still a key focus.
Homeland Security Secretary Alejandro Mayorkas, who runs the department tasked with combatting illegal immigration, said after the ruling, “The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country … only Congress can provide permanent protection. I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve.”
White House Press Secretary Jen Psaki also weighed in, saying, “We are committed to getting immigration reform done.” She added, “This, I expect, would renew a look for what the vehicles and options may be.”
Because reconciliation is one of the only ways to get legislation through the Senate on a simple majority, it is for Democrats the only chance to push forward their immigration agenda with no Republican support. Any other piece of legislation is subject to death by filibuster, which can only be ended by the vote of 60 senators.
The bill is currently set for a House vote on Thursday. With this setback, Democrats have mere hours to craft a new proposal if they hope to keep that deadline.