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What Democrats were trying to do about immigration in their budget bill, and why it ran afoul of the Senate parliamentarian

Talk about irreconcilable differences.

Demonstrators protesting current citizenship pathways for recipients of the DREAM Act gather near the Senate Swamp at the U.S. Capitol on September 22.
Demonstrators protesting current citizenship pathways for recipients of the DREAM Act gather near the Senate Swamp at the U.S. Capitol on September 22.
REUTERS/Tom Brenner

For the past several weeks, Democrats in the House have been fighting to draft and pass their $3.5 trillion budget bill — called the Build Back Better Act — which contains a host of progressive priorities like universal child care, two years of free community college and a permanent family and medical leave program.

But one section of the bill has just thrown trillions of dollars into an uncertain future: immigration.

As part of the spending bill, Democrats included provisions giving legal status and the potential for eventual citizenship for millions of undocumented immigrants who were brought to the country as children, known as Dreamers. It would also provide green cards to other groups of immigrants, including farmworkers and those who have been granted Temporary Protected Status due to dangerous and often life-threatening conditions in their home countries.

Though Republicans have resisted such moves, they weren’t the ones to reject this proposal. Instead, Democrats’ immigration policy was shot down by none other than the Senate Parliamentarian Elizabeth MacDonough, a setback that likely closes the door on efforts to provide a pathway to citizenship through the budget reconciliation process.

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Why immigration got rejected

The reason the Senate parliamentarian gets a say on this policy at all is because of how the Democrats are trying to pass their bill.

In the current Senate, split 50-50 down the aisle, most bills need to get 60 votes to pass. Without a 60-vote majority, opposing members can filibuster a bill, essentially killing it.

But using the budget reconciliation process only needs a simple majority in the Senate — 51 votes, with a 50-50 tie ending in a vote by Vice President Kamala Harris. Budget reconciliation votes can’t be filibustered.

But there’s a catch: The budget reconciliation process is intended to be used only to pass, well, budgets — and the Senate has specific rules about the kinds of policy that can be passed. In general, the legislation must significantly change federal spending, revenues, and the federal debt limit. The arbiter of whether a specific bill makes the grade? The Senate parliamentarian.

Democrats had reasoned that their immigration changes fit within the rules because creating a pathway to citizenship for upwards of eight million immigrants  would raise the budget deficit by around $139 billion, according to NPR.

But on Sunday, MacDonough, the parliamentarian, rejected that argument: “The policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation,” MacDonough wrote in her ruling. She also said that there was a disconnect between the policies suggested and the actual budget.

“The reasons that people risk their lives to come to this country – to escape religious and political persecution, famine, war, unspeakable violence and lack of opportunity in their home countries – cannot be measured in federal dollars,” MacDonough said in her ruling.

Dems might try again, but immigration reform likely out of budget

Minnesota’s Second District Rep. Ilhan Omar spoke out against this decision on Twitter, saying that the ruling “is only a recommendation.” She said the White House “can and should ignore it.” Technically, the Vice President of the U.S., who is also president of the Senate, can override the parliamentarian, but this is rare — it last happened in 1975.

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Fourth District Rep. Betty McCollum released a statement after MacDonough’s decision was released, calling the decision “extremely disappointing.”

Rep. Ilhan Omar
REUTERS/Erin Scott
Rep. Ilhan Omar
“My office constantly works on immigration casework and I regularly hear from constituents, business leaders, and others who strongly support advancing comprehensive immigration reform,” McCollum said. “I am ready to vote today to pass immigration legislation that will meet the needs of immigrants, their families, and our economy.”

Democrats will hold more meetings with the parliamentarian to try to find different ways to include citizenship and other immigration policies in the budget. But there’s no precedent for this — in 2005, a reconciliation bill that included provisions for immigrant visas was passed by a Republican-led Senate with bipartisan support, but the former parliamentarian did not test whether immigration reform language would be allowed. MacDonough’s predecessor said in an interview with NPR that the odds on this issue are now likely in the GOP’s favor.

Rep. Betty McCollum
Rep. Betty McCollum
This isn’t the first time this year that MacDonough has frustrated Democrats with her decisions. In February, she issued a decision preventing Congress from including a mandatory $15 federal minimum wage in a COVID-19 relief package. Democrats fought back, urging President Biden to overturn the decision. He declined, and the federal minimum wage remains at $7.25 per hour.

Still, Democrats are planning on fighting this decision.

“We are deeply disappointed in the Parliamentarian’s decision, but the fight for immigration reform will continue,” Senate Majority Whip Dick Durbin, D-IL., the chairman of the Senate Judiciary Committee, and California Democratic Sen. Alex Padilla, both key players in the debate, said in a joint statement. “We are deeply disappointed in the Parliamentarian’s decision, but the fight for immigration reform will continue.  Senate Democrats have prepared alternative proposals for the Parliamentarian’s consideration in the coming days.”