Several months of bipartisan Senate negotiations has yielded a stalemate on broadly popular measures that would enable certain categories of qualified immigrants — such as “Dreamers” and farmworkers — to earn legal permanent residence.
Facing the prospect of death by filibuster once again — bills legalizing Dreamers have been filibustered five times in the last 15 years — Democrats have unified around a plan to pass these measures through budget reconciliation. This should not be controversial. As the abuse of the filibuster has increasingly become the institutional norm, both parties have had to rely on the reconciliation process to pass major legislation, including the Affordable Care Act, the 2017 Tax Cuts and Jobs Act (which notably opened up large chunks of the Arctic National Wildlife for drilling) and the American Rescue Plan.
Opponents of the immigration measures, however, are already baldly asserting that such reforms cannot be advanced through reconciliation. These declarations do not withstand scrutiny.
Several tests — collectively known as the “Byrd rule” after the late Sen. Robert Byrd — determine whether a measure is eligible for reconciliation.
First, the policy must produce a change in “outlays or revenues;” in other words, it must have an impact on the federal budget. Irrefutably, enabling immigrants to earn permanent residence has a clear and significant budgetary impact, primarily by allowing a new class of people to become eligible for public benefits and services. For example, the Congressional Budget Office estimates that passing the Dream and Promise Act — which would enable Dreamers and Temporary Protected Status recipients to earn permanent residence — would cost $42.5 billion over 10 years.
While not directly relevant to the Byrd rule analysis, it bears noting that the economic benefits generated by enabling this population to work lawfully would more than offset those costs: A recent study found that putting Dreamers, TPS holders, farmworkers and other essential workers on a path to permanent residence would add a cumulative $1.5 trillion to the U.S. GDP over the next decade and create more than 400,000 jobs.
The second Byrd rule test assesses whether the budget costs of a policy are “merely incidental” to the “nonbudgetary components.” Enabling a class of people to earn permanent residence easily survives this test: A central consequence of a person obtaining permanent residence is their eligibility to participate in the full spectrum of public social services.
Opponents of these provisions cannot argue in good faith that the budget impacts are “merely incidental” given that one of their central rationales for opposing legalization is that granting undocumented immigrants legal status would burden U.S. taxpayers by making them eligible for federal benefits. Indeed, their argument directly strengthens the case for reconciliation.
While conferring permanent resident status carries the additional (nonbudgetary) impact of protecting people from deportation, it’s just one of the effects. In fact, the Biden administration can choose, as it already has, to protect these individuals from deportation through the exercise of prosecutorial discretion. What the administration can’t do, however, and what this legislation would, is make a new class of people eligible for federal entitlements. The budgetary impact is therefore undeniably at the core of this legislation.
Opposition to using reconciliation also runs into a wall created by the Senate’s own precedents. Several of the senators currently claiming this effort is impermissible explicitly supported an expansion of green cards in 2005 as part of a budget reconciliation bill. That legislation would have significantly increased the number of green cards available each year, making an additional 3.24 million people eligible for permanent residence over a decade, precisely the type of policy being proposed by Democrats today.
During Senate debate on the 2005 reconciliation bill, Sen. Byrd (yes, the rule’s namesake) offered an amendment to strike those provisions. Notably, he did not challenge the green card provisions on Byrd rule grounds that the budgetary impact was “merely incidental”, a procedural option he surely would have exercised if he thought it was available. Equally notable, Sens. Mitch McConnell and John Cornyn — opponents of the legislation today — voted to keep green cards in the reconciliation legislation, helping defeat Byrd’s amendment 85-14.
The federal budget implications of enabling qualified immigrants to earn green cards plainly satisfy the tests imposed by the Byrd rule. Even the senator for whom the rule is named (and who opposed the underlying policy) did not dispute that. Reconciliation is not only a legitimate way to realize these long overdue measures, it may be the only way — and we cannot afford to miss this opportunity.
Marshall Fitz is the managing director of immigration at Emerson Collective, an organization dedicated to creating systemic change in education, immigration, climate, and cancer research and treatment. He was previously vice president of immigration policy at the Center for American Progress and an adviser to the Obama administration.