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Democrats pitch parliamentarian on immigration relief

The immigration provisions in the reconciliation bill are getting a so-called Byrd bath to determine whether they are eligible

Members of the immigrant advocacy organization CASA hold signs outside the Capitol in September.
Members of the immigrant advocacy organization CASA hold signs outside the Capitol in September. (Bill Clark/CQ Roll Call)

Democrats made their case Wednesday for including temporary immigration protections in their social spending bill — setting the stage for a potential showdown on the party’s last-ditch effort to provide some degree of protection for the undocumented community.

Senate Democrats met with Parliamentarian Elizabeth MacDonough to argue the immigration protections are eligible to be included in a $2.2 trillion reconciliation bill, while Senate Republicans opposed inclusion. Under the so-called Byrd rule, reconciliation bills, which can pass with a filibuster-proof majority, must primarily impact the federal budget.

Two Democratic Senate aides called it a “productive conversation.”

The bipartisan meeting, known as a “Byrd bath,” follows an information discussion MacDonough had on Nov. 23 with Senate staffers, who emerged feeling positive, according to a source familiar with the meeting. The source said MacDonough, a Senate adviser, did not reject their proposal outright, as she had with earlier versions of the immigration section, and indicated she wanted to move forward with the process.

Judiciary Chairman Richard J. Durbin, D-Ill., who oversees the bill’s immigration provisions, told reporters Tuesday that regarding the earlier, informal meeting, he didn’t “have any indication one way or the other” as to MacDonough’s decision.

“She kept it very close to the vest and didn’t react as we made our initial presentation,” he said.

Kerri Talbot, deputy director of Immigration Hub, told reporters Wednesday the parliamentarian may have suggested revisions to the provisions, and she expects another “Byrd bath” after those changes are incorporated. 

“This is the formal Byrd bath, not the final Byrd bath,” she said. 

Top Senate Democrats involved also acknowledge that changes to the House-passed immigration section are likely to usher the provisions past the finish line.

[Temporary immigration protections for millions pass the House]

“There will have to be some adjustments,” Sen. Alex Padilla, D-Calif., chair of the Judiciary Committee’s immigration panel, said Tuesday. He added, “We’re gonna go to the parliamentarian first and then adjust.”

The Congressional Budget Office estimated the provisions, which offer up to five-year work permits and deportation protections, will add more than $300 billion to the deficit after 2031, which could doom the provisions under Senate rules.

That estimate is based, in part, on an assumption the Department of Homeland Security would extend protections for the parents of U.S. citizens and roughly half of other undocumented immigrants beyond the bill’s 10-year life span.

On Tuesday, Durbin said issues stemming from the CBO score were “being discussed right now.”

Senate Democrats have yet to put other provisions in front of MacDonough for review that would help immigrants stuck waiting years for a green card in lengthy visa backlogs created by strict per-country caps. Talbot said Wednesday she expects those provisions to be presented soon.

The political stakes are high for Democrats, who promised on the campaign trail to enact meaningful protections for immigrants, including those brought to the U.S. as children, known as Dreamers.

The latest immigration language, which the House passed in November, falls short of advocates’ demands for language creating a pathway to citizenship. MacDonough previously rejected two earlier proposals to allow millions of undocumented immigrants to apply for green cards.

“The Plan C proposal is designed to overcome the earlier objections of the parliamentarian. So it is far less than we wanted, much better than the status quo and, in our view, should enable the parliamentarian to get to yes,” said Frank Sharry, executive director of the immigrant advocacy group America’s Voice.

He predicted that even if this version is struck from the bill, Senate Democrats will likely face loud calls to override MacDonough’s decision, which would likely require the support of at least all 50 Senate Democrats.

“If she guts it, and uses her power recklessly, to once again thwart the futures of millions, I think there will be a stronger push from the outside and from within the Senate to ignore a politicized ruling,” Sharry said. “The pressure is on Elizabeth MacDonough.”

Some advocates are already pushing the Senate to reinstate provisions that would create a path to citizenship.

The National Immigration Law Center, the UndocuBlack Network and other groups released a memo earlier in November outlining how Senate Democrats could override the parliamentarian.

They argued the Senate’s presiding officer, likely Vice President Kamala Harris or President Pro Tempore Patrick J. Leahy, D-Vt., could issue their own decision overruling the parliamentarian’s, and that Democrats would need a simple majority to fight off any Republican amendments.  

The NILC and others are working to educate Senate Democrats on this procedure, according to Marielena Hincapié, executive director of the NILC and former co-chair of the Biden-Sanders unity task force on immigration.

“We are urging Democrats to step into their own political power, to disregard the parliamentarian’s advisory opinion and enact the permanent relief that millions of immigrants who call our country home, and who are essential to who we are as a nation, absolutely need,” she said.

At the same time, while Democrats fight to preserve the House-passed immigration provisions, some note the protections merely kick the can down the road without making long-needed permanent improvements to the U.S. immigration system.

“These are not full immigration reform provisions. They are Band-Aids. They are fixes. They look back on some things that need to be fixed, or that need a repair,” said Laura Collins, director at the George W. Bush Institute who focuses on immigration and economics. “They don’t move forward with a new, modern immigration system that actually meets the needs of the country.”

Caroline Simon and Lindsey McPherson contributed to this report. 

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