The Senate parliamentarian rebuffed Democrats’ attempt to include immigration changes in a sprawling $3.5 trillion budget reconciliation measure, delivering a blow to efforts to create a pathway to citizenship for millions of immigrants for the first time in decades.
In a Sunday night decision, Elizabeth MacDonough found the proposed provisions, which could have put millions of undocumented immigrants, including those brought to the U.S. as children, on a track to permanent residency, did not comply with Senate procedural rules governing the reconciliation process.
“The policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation,” MacDonough said in a copy of the decision obtained by CQ Roll Call.
The consequences of putting millions of people on a path to citizenship would go far beyond the narrow scope of the nation’s budget, MacDonough said.
Lawful permanent resident “status would give these persons freedom to work, freedom to travel, freedom to live openly in our society in any state in the nation, and to reunite with their families and it would make them eligible, in time, to apply for citizenship – things for which there is no federal fiscal equivalent,” she said. “Changing the law to clear the way to LPR status is tremendous and enduring policy change that dwarfs its budgetary impact.”
Under what’s known as the “Byrd rule,” measures included in a reconciliation bill — which can pass with a simple majority — must directly affect the federal budget. Democrats made their initial pitch that the immigration changes had budgetary impact to MacDonough on Sept. 10.
However, the parliamentarian’s decision likely won’t end Democrats’ efforts to pass some sort of immigration relief through reconciliation, but rather will send them back to the drawing board.
Senate Majority Leader Charles E. Schumer said as much in a statement, saying he was “deeply disappointed” by McDonough’s decision but “the fight to provide lawful status for immigrants in budget reconciliation continues.”
“Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days,” he said. “The American people understand that fixing our broken immigration system is a moral and economic imperative.”
Sens. Richard J. Durbin, D-Ill., and Alex Padilla, D-Calif., who have been spearheading their party’s efforts to include immigration provisions in the plan, said they were “deeply disappointed in the Parliamentarian’s decision, but the fight for immigration reform will continue.”
Sen. Lindsey Graham of South Carolina, the top Republican on the Senate budget committee, praised MacDonough’s decision and stressed the need to ramp up border security before legalizing undocumented immigrants.
“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 Sunday. “It would have led to an increased run on the border – beyond the chaos we already have there today.”
With control of both chambers of Congress and the White House, the Democrats have a narrow window of opportunity to push through their policy priorities via reconciliation before the midterm elections.
One option under consideration, according to a person familiar with discussions, is to move up the date on the immigration registry, which the government has not been updated in decades and is currently set to 1972. This would allow immigrants who have been living in the U.S. since a revised date, and who have demonstrated “good moral character,” to become permanent residents.
“Should there be a concern about the package that we've put together, we have additional ways to structure the relief that we would then be able to present to her [MacDonough],” Rep. Zoe Lofgren, the California Democrat in charge of the Judiciary Committee’s immigration panel, told reporters earlier this month.
Greisa Martinez Rosas, executive director of immigrant advocacy group United We Dream Action, called on Democrats to “deliver on their promises to the people” and “be brave.”
“Leadership is about making bold decisions in times of great need,” she said in a statement.
Democrats had argued that the proposed immigration provisions, which would have allowed certain immigrants to apply for permanent residency after paying a $1,500 fee, fit within the parameters of its currently $3.5 trillion reconciliation bill because of the potential impact on the U.S. economy.
A study released earlier this year by the Center for American Progress and the University of California, Davis’ Global Migration Center found that allowing Dreamers, individuals with temporary humanitarian protections and undocumented essential workers to become permanent residents would increase the U.S. gross domestic product by a cumulative total of $1.7 trillion over 10 years and create more than 400,000 new jobs.
“Granting a pathway to citizenship for millions of aspiring Americans will bring expansive economic benefits to communities across the country — while having a significant impact on the federal budget — not only for the individuals directly affected, but for the larger systems — families, and the workforce — that they comprise,” dozens of economics wrote in a Sept. 9 letter to congressional leaders.
President Joe Biden has also backed the effort. The White House released a Sept. 17 blog post, authored by four top economists, arguing for the economic benefits of legalizing undocumented immigrants, including by allowing them more job mobility. And while legalizing immigrants may encourage them to use public benefits like Medicaid, the economists contended these costs would be offset by their higher tax contributions.
“Allowing currently unauthorized workers to engage fully in the labor force would not only benefit the immigrants and their families, but society as a whole,” they wrote.
Republicans, whose votes are not needed for a reconciliation bill to pass in the Democrat-controlled Congress, have squarely opposed the attempt to include legalization measures in such a bill.
Efforts to legalize some of the roughly 11 million undocumented immigrants currently in the U.S., a long time priority for Democrats, have support not only from immigrant advocates, but also from much of the business community, which has warned of labor shortages hindering a post-pandemic economic recovery.
The last time Congress passed legislation that allowed a broad population of undocumented immigrants to fix their statuses was in 1986 under the Reagan administration.
MacDonough’s determination marks the second time the Senate adviser has thwarted Democrats’ agenda on procedural grounds. Earlier this year, MacDonough said that Democrats could not include a minimum wage increase in their pandemic relief bill.
Niels Lesniewski contributed to this report.