Senate Parliamentarian May Decide If Millions of New Immigrants Can Enter US

By Mark Tapscott
Mark Tapscott
Mark Tapscott
Congressional Correspondent
HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.
October 4, 2021 Updated: October 4, 2021

Senate Parliamentarian Elizabeth MacDonough has previously knocked down Senate Democrats’ Plan A and Plan B immigration proposals in their draft versions of President Joe Biden’s $3.5 trillion “Build Back Better” spending program.

What MacDonough recommends on the expected Plan C that Senate Democrats are preparing could determine whether America’s borders are opened to millions of new legal immigrants and a new mostly “open borders” immigration system is thus erected for the federal government.

MacDonough—first appointed to the nonpartisan post in 2012 as the first woman ever to hold it—then is in the hot seat because Democrats are pushing the gargantuan Biden spending plan through Congress under its “reconciliation” process. They are doing so because reconciliation proposals need only 51 votes to pass the Senate instead of the usual 60.

With the Senate split 50–50, Democrats must corral all of their caucus members to vote for the plan, the biggest, most comprehensive expansion of the federal government since the New Deal, then have the tie broken by Vice President Kamala Harris.

MacDonough previously knocked down the Democrats’ first and second attempts to gain her positive recommendation for inclusion of multiple immigration provisions that are already in the 2,400+ page House version of reconciliation.

Under the standing rules of the reconciliation process, provisions in reconciliation bills must have an effect on the federal government’s spending and revenues that is more than “merely incidental.”

Changes that are strictly of a policy nature don’t qualify, even though they may affect the budget. That means there’s a gray area between the two absolutes of “merely incidental” and wholesale changes. Democrats hope the third time will be the charm as MacDonough opens the door to some or most of their reform proposals.

What is certain is the huge impact on the United States that will result from enactment of the major Democratic proposals, according to immigration experts interviewed on Oct. 4 by The Epoch Times.

MacDonough recommended against the earlier Democratic proposals to authorize amnesty for as many as 8 million illegal aliens already in the country in September, but millions more legal immigrants would be covered by various provisions in the House bill that Senate Democrats are seeking to advance.

The provisions would “substantially increase permanent, legal immigration using a combination of interpretation gimmicks and exemptions to current immigration law,” according to a recently published analysis by Robert Law, the Center for Immigration Studies (CIS) director of regulatory affairs and policy.

“Step one involves a concept advocates of unlimited immigration have dubbed ‘recapturing unused immigrant visas.’ By law, family-based immigration has a floor of 226,000 green cards per year, while the employment-based immigration level is set at 140,000,” Law wrote.

“Under this theory, a green card that could have been issued in a given fiscal year in the past but was not (either family-based or employment-based) is ‘unused’ and, therefore, should be brought back to life for the benefit of a current or future prospective immigrant.”

But in fact, Law notes, green cards don’t go “unused.” Those from one category that remain available at the end of a year are transferred to the other category for the following year. Democrats instead want to “recapture” all “unused” green cards issued between 1992 and 2021 and make them permanently available.

If what Law calls the Democrat’s “resurrection fantasy” becomes law, he estimates that nearly 800,000 green cards will thus be added to the supply. Also added would be a second step, in which winners of the immigration lottery between 2017 and 2021 who were unable to complete the process effectively get a free pass.

But the third step in the Democratic proposals is the most significant because it provides another way around the green card process.

“Step three in the legal immigration bonanza is rather crass, as it offers an exemption from the green card annual numerical limits and the per-country cap if they have the means to pay a supplemental fee,” Law said.

“More precisely, this carve-out applies to those aliens seeking to adjust status to lawful permanent resident, a process reserved for aliens already in the country, but who have to wait at least two years for a green card to become available based on the Department of State’s Visa Bulletin.

“Through Section 60003 of the [House reconciliation bill], any family-based prospective immigrant with a two-year wait can jump the line for an additional $2,500, any employment-based prospective immigrant (preference categories 1-3) can jump the line for an additional $5,000, and any EB-5 immigrant investor can jump the line for an additional $50,000.”

Provisions like those are why Law’s CIS colleague Jessica Vaughan told The Epoch Times that, even without the amnesty previously rejected by MacDonough, “the reconciliation bill being pushed by the House Democrats includes the most consequential changes to U.S. immigration law in 60 years. With a series of gimmicks, the bill would expand legal immigration dramatically, essentially bypassing the numerical limits set by Congress by offering work permits to those who can get into the country with a visa and find a job.”

Vaughan, who is director of policy studies for CIS, said “millions of foreign students who would get indefinite work permits while waiting for a green card” would be big winners. This would mean a big expansion in the number of de facto immigrants, and especially those competing with U.S. college grads for jobs.”

While MacDonough has been in the national media spotlight in recent weeks, Chris Chmielenski, deputy director of NumbersUSA, told The Epoch Times that Senate Democrats “can choose to ignore the parliamentarian if they want to. It wouldn’t be good, and it would set a precedent, and they would have to have a vote on it, but they could do it, and probably successfully.”

And Liberty Government Affairs founder Brian Darling, former general counsel to Sen. Rand Paul (R-Ky.), told The Epoch Times that in the final analysis, Senate Democrats can do as they please as long as they keep their caucus voting in unison.

“The Senate parliamentarian does not ‘rule’ on anything. That is a myth perpetuated by Senate Majority Leader [Chuck] Schumer. The parliamentarian recommends rulings, and nothing prevents the vice president, who serves as president of the Senate, or the senator sitting in the Chair, from ignoring the recommended ruling of the parliamentarian,” Darling said.

“This is political theater, because if the Democrats wanted to ignore the recommended ruling of the parliamentarian, the only thing preventing it is their own caucus. Ultimately, a Republican senator would appeal any ruling on controversial provisions and Democratic senators could allow in certain controversial provisions to the bill if they could hold their caucus together.”

Darling added that it “all comes down to partisan fights and if Democrats want to use reconciliation to do an end-run around the filibuster. They can, even if the parliamentarian recommends against it, if they can hold their caucus together.”

Mark Tapscott
Congressional Correspondent
HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.