Democrats’ Plan for Immigration Overhaul in Biden Agenda Blocked

(Bloomberg) -- The Senate parliamentarian has blocked Democrats from including a plan to provide legal status to as many as 8 million undocumented immigrants in the package of legislation encompassing President Joe Biden’s economic agenda.

Parliamentarian Elizabeth MacDonough issued an opinion Sunday that the broad and long-stalled immigration overhaul doesn’t qualify for inclusion in a massive tax and spending plan under the Senate rules that Democrats are using to bypass a Republican filibuster.

The parliamentarian said the proposal by Democrats is a policy change that “substantially outweighs” the budgetary impact of that change, effectively finding it out of bounds under Senate rules.

“It is by any standard a broad, new immigration policy,” MacDonough wrote.

The Senate Democrats’ plan would have granted status to undocumented immigrants including young “Dreamers,” migrant farm workers, some immigrants deemed “essential workers” and others with temporary protected status.

The parliamentarian’s decision means that the immigration proposal would require 60 votes rather than the simple majority allowed for the fast-track procedure known as reconciliation. The Senate is split 50-50 between the two parties, with Vice President Kamala Harris able to break ties, and the broad GOP opposition to the immigration overhaul would doom it.

Senate Majority Leader Chuck Schumer said Democrats will try again with an alternative plan that could allow a way for more undocumented immigrants to achieve legal status.

‘Alternate Proposals’

“We are deeply disappointed in this decision but the fight to provide lawful status for immigrants in budget reconciliation continues,” he said in a statement. “Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days.”

But another attempt could fail or, at the very least, make it even tougher for Democratic leaders to move ahead with any speed on the larger package.

GOP Senator Lindsey Graham, the top Republican on the Senate Budget Committee, heralded the decision. He said it’s in line with “long held traditions” that the Senate should largely make big policy changes “collaboratively and not through the reconciliation process.” 

“Having worked on several comprehensive immigration reform bills, I believe that using the reconciliation process to provide legal status to illegal immigrants would be a disaster,” Graham said in a statement. “It would have led to an increased run on the border – beyond the chaos we already have there today.”

The immigration plan has broad support among Democrats in both chambers, and leaving it out will cause howls of protest from progressives, whose push for a much more sizable economic plan has already fallen by the wayside.

In making their case to the parliamentarian, Democrats argued unsuccessfully that immigration should qualify for filibuster protection because their proposal has a significant budgetary impact. The nonpartisan Congressional Budget Office has estimated that the 8 million immigrants once they get legal status would qualify for federal means-tested benefits that would have a net budgetary impact of $140 billion, Senate Democratic aides said. That includes Obamacare, Medicaid, refundable tax credits and supplemental security income.

In 2005, the parliamentarian accepted a similar argument in allowing an immigration provision to move ahead, and Democrats also pointed to that earlier decision and others in making their case. MacDonough said that case did not set a precedent.

The parliamentarian wrote that in the 2005 instance, the immigration law change was handled through reconciliation was a change that had broad bipartisan support. It also applied to people who were already admissible to the U.S. and not barred by existing law from applying for legal status.

Broad Impact

She said that legal permanent residency has a value that goes far beyond the impact on the budget under Senate rules. It provides “life-changing” benefits that include the ability to bring in other family members, in-state college tuition, freedom to live openly in the U.S., and freedom from the risk of deportation.

“Changing the law to clear the way to LPR status is tremendous and enduring policy change that dwarfs its budgetary impact,” MacDonough wrote.

She also noted that the immigration proposal if it were included in reconciliation could just as easily be repealed by a simple majority by Republicans in the future. She said there is a risk of allowing future arguments that a precedent was set that anyone’s immigration status might be rescinded using this process because doing so doesn’t “vastly outweigh whatever budgetary impact there might be.”

MacDonough is the Senate’s adviser on the interpretation of rules and procedures. As Democrats continue their work on the economic package, Republicans are likely to make other challenges before her in other areas including climate change.

Senate Democrats for weeks have been considering other options they could push as alternatives, according to a person familiar with their plans. One is to update an “immigration registry” that is outdated but has been used as a tool to provide green cards to the undocumented on the basis of their long-term presence in the U.S., regardless of their status or how they entered the U.S. 

That registry hasn’t been altered in federal law since 1986, when an entry year of 1972 was the cut-off for this green-card tool to apply. They could propose changing that to allow immigrants who arrived at a later date, perhaps 2010, to use the registry as a way to get legal status, the person said.

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