Factors that Will Influence the Fate of Biden's Amnesty Plan

Congressional control, the economic climate, and the principles of Sen. Joe Manchin

By Andrew R. Arthur on January 20, 2021
  • The Biden administration is reportedly planning to send an amnesty bill for 11 million-plus aliens to Congress in the next few days.
  • There are many factors that will determine the success or failure of that plan — and what the final product will look like — but the speed at which it moves through the legislative process will likely be the key one.
  • Democrats hold a slight majority in the House, and the Senate is evenly split, effectively giving control of that chamber to the Democrats. The majority of Democrats are likely to favor a large amnesty plan with few if any needed enforcement reforms, but many in the House could face significant reelection challenges.
  • Passing that plan through "regular order" — by which the legislation is subject to committee hearings and mark-ups — will likely slow the passage of that bill, but is more likely to result in legislation that has popular support and contains key reforms and compromises. House Democrats who are in vulnerable seats in the next election would probably strongly favor that result.
  • Bills can be passed through the House through regular order on simple majorities, but the filibuster rule in the Senate means that stand-alone amnesty legislation will require 60 votes, and therefore would be dependent on Republican support.
  • Sen. Joe Manchin (D-W.Va.) has stated unequivocally that he opposes doing away with the filibuster. Whether he sticks to his principles on the issue will determine whether the amnesty bill will need to meet that 60-vote margin.
  • The Senate can pass that bill, however, through the budget "reconciliation" process, but that will require linking the amnesty to government revenues and spending. Sen. Manchin, a Democrat who represents a largely Republican state, may oppose that maneuver.
  • A further economic downturn could imperil the prospects for that bill. The unemployment rate in December was 6.7 percent, and more than 56 million working-age Americans were not in the labor force. Tens of thousands of businesses have closed permanently as a result of the pandemic.
  • Popular support for legalizing millions of aliens unlawfully present and allowing them to compete with those currently in the legal workforce may not be that strong, and would likely fall if the economy does not reverse itself, or if it gets worse.

In my last post, I reported that the incoming Biden administration is prepared to send — in short order — amnesty legislation to Congress. The full text has not yet been released, but an outline suggests that it will be a whopper, legalizing an estimated 11 million aliens unlawfully present in the United States. Here are some factors that will influence its ultimate scope, and success.

Makeup of Congress, and the Senate's Rules

The first, and most important factor is the makeup of the House and the Senate, and the Senate's unique rules. Democrats will have control of both chambers, but by the slimmest of margins.

House of Representatives

There are currently 222 Democrats in the House, 212 Republicans, and one vacancy, the latter prompted by the untimely death of Rep. Luke Letlow (R-La.), who had been newly elected in November. A special election for Letlow's seat is scheduled for March 20 in the heavily Republican district (with a possible second election on April 24 if none of the candidates gets more than 50 percent of the vote), so the new representative will likely be from the GOP.

That seems like a nine-seat advantage for the Democrats, but keep in mind it means that a swing of five seats in the 2022 election will hand the gavel to Republicans.

Every 10 years, after the census is concluded, congressional districts are redrawn in the states (usually to the advantage of the party in control of the state, a process known as "gerrymandering"), which will be reflected in the 2022 election. And, as FiveThirtyEight has noted, the Party of Lincoln won "almost every 2020 election in which control of" decennial "redistricting was at stake".

That means that Republicans will likely have a more favorable path to (but not a guarantee of) winning the seats that it needs for control in the next election, and that Democrats will have to hold their current seats, or win new ones, to maintain control. That gives Biden a very narrow window in which to push controversial immigration legislation through, as in essence the next congressional campaigns will start in less than a year.

The current assignments for the key House Judiciary and Homeland Security Committees (each of which will have jurisdiction over of the bill in committee) have not yet been announced, but given the narrow margins in the lower chamber, there should be a (roughly) equally narrow margin on the committees (although that itself is a political issue).

Simple majorities are all that is needed to move legislation out of committee (and for any amendment vote in committee), giving the Democrats the advantage in advancing Biden's proposals. This all assumes that the legislation follows "regular order" (which I will discuss below).

House Speaker Nancy Pelosi (D-Calif.) controls which bills are brought to the floor of the House, so Biden's bill, or some variation thereof, will definitely make an appearance. And, as Pelosi essentially controls the House Rules Committee (which decides which amendments are "in order" for a vote, among other things), she can also limit amendments on the floor.

Once more, a simple majority is all that is needed for passage in the House, so assuming that the Democrats stick together on the final product — or make concessions to draw in some more moderate Republicans or protect vulnerable Democrats for passage —they can likely control the final parameters of any amnesty there.


The net loss of three Senate seats by Republicans means that the upper chamber is evenly divided 50-50. Therefore Vice President-elect Kamala Harris (as president of the Senate) will cast the deciding vote on control, and also on any key votes.

Committee memberships and funding for staff will be decided by the organizing resolution, which itself requires 60 votes, so outgoing Majority Leader Mitch McConnell (R-Ky.) will have some leverage to extract concessions from incoming Majority Leader Chuck Schumer (D-N.Y.).

The last time there was an evenly divided Senate, in 2001 (a lot happened in the Senate to shift control back and forth in that 107th Congress), committee membership was evenly split, with Republicans holding the chairmanships when they had 50 seats thanks to the vote of Vice President Dick Cheney.

If there were a tie in the votes to report a bill out of committee when control was split in the 107th Congress, either the majority or minority leader could bring that bill to the floor.

Similar rules are likely to be followed this time, as well (only with Democrats controlling the gavels), despite the fact that there is significant rancor between senators from each party.

Manchin, the Filibuster, and Reconciliation

Then there is the filibuster, which I explained (somewhat predictively) in detail in connection with any possible Biden amnesty in August. Simply put, it is a way to block or delay the passage of legislation in the Senate. Senate rules require a supermajority of 60 votes to end a filibuster and move to consideration of a bill.

Now, the new Democratic majority in the Senate can change that rule through the so-called "nuclear option" with a simple majority, but moderate Sen. Joe Manchin (D-W.Va.) has already stated that he would be a "nay" vote on any such change. Assuming that he sticks to his principles on that one, the amnesty that emerges from the Senate (if any) will likely be much more limited and contain some important enforcement improvements.

Manchin will have to be treated with kid gloves by the GOP, though, to ensure that he does not change his mind. Trump won West Virginia by 39.1 percent, but Manchin — a former governor, is not up for reelection until 2024.

Of course, there is always the option for Schumer to pass amnesty by a simple majority on what is known as "reconciliation". That starts with the congressional budget resolution, which is not subject to filibuster in the Senate, and directs committees "to change spending, revenues, or deficits by specific amounts". The committees then write bills to reach that target, which the Budget Committee compiles into a single bill.

Now, only "policies that change spending or revenues can be included" in the reconciliation bill. That is why, in coming weeks, you will read numerous articles that explain how amnesty will boost federal revenues and cut federal costs.

Manchin will play an oversize role in this process, as well. He previously voted for amnesty for so-called Dreamers with an additional $25 billion in border security, but voted against the bill without the border security. That said, he also voted to block Trump's declaration of a border emergency to shift Department of Defense funding toward barrier construction. He may vote against a reconciliation that includes a massive amnesty without enforcement reforms that could not pass the Senate on its own.

He is not a fan of Trump's (Manchin has referred to him as a "very flawed individual"), but is laser-focused on jobs and "the dignity of work". If the amnesty bill is shown to threaten American jobs, I am not saying that he would vote against it, but he would likely demand concessions to protect those jobs and the rights of working Americans.

Regular Order

Next, there is the question of whether amnesty legislation follows what is known as "regular order". The Congressional Research Service (CRS) explains:

Regular order is generally viewed as a systematic, step-by-step lawmaking process that emphasizes the role of committees: bill introduction and referral to committee; the conduct of committee hearings, markups, and reports on legislation; House and Senate floor consideration of committee-reported measures; and the creation of conference committees to resolve bicameral differences.

That is the way that successful legislation used to proceed when I was a staffer on the House Judiciary Committee years ago, but as CRS notes the prominence of regular order "has declined compared with the rise of newer, party leadership-directed processes."

Regular order usually results in more toned-down, and "popular", legislation, as members from both sides of the aisle get the chance to debate bills and reach compromises on issues of disagreement. But, it also slows legislation down as it makes its way through the Schoolhouse Rock's "I'm Just a Bill" process.

That is likely as large an impediment to amnesty legislation as anything. Trump is unpopular in many quarters at the moment, and immigration enforcement was one of his key issues (as I noted in my prior post). Still, he received 74,222,958 votes — more than any other candidate for president in history aside from Biden — so his ideas likely have resonance.

Americans are fickle as it relates to many issues, and immigration is one of the hot-button ones. It likely got Trump elected in 2016, but was not as major an issue this go-round (as I have previously noted). But, as I explained elsewhere, that was likely because there was no major immigration crisis, given the pandemic shutdown of most immigration.

The latest Gallup polling (from May to June) showed that almost two out of three respondents believed that the level of immigration should stay the same or be decreased. It is important to recognize, however, that the percentage in favor of a decrease dropped seven points — from 35 percent to 28 percent — from a poll 11 months earlier. But that poll was taken in the middle of the FY 2019 border crisis — not during a pandemic immigration shutdown, however.

Which brings me to the next major factor.

A National Economic Crisis

In my last post, I explained how a surge of aliens at the border could imperil Biden's amnesty plans. That is not the only national crisis, however, that could scuttle them.

Needless to say, another September 11th-style terrorist attack, carried out by aliens in the United States, would likely cause a pull-back from the sort of expansion of immigration that Biden apparently envisions. But even something much less dire could have an impact.

Most importantly, no one really knows what a post-pandemic economy will look like.

The December unemployment rate — which had hovered at or below 4 percent for an extended period prior to the pandemic — was 6.7 percent. Just over decade ago, though, it sat at 9.6 percent, as the economy was recovering from the Great Recession.

More importantly, however, according to the Bureau of Labor Statistics, in December 56.4 million people of working age were not in the labor force at all, neither working nor looking for work — almost half of whom are in the primary working years of 25 to 54.

These would all be reasons for Biden to move his amnesty plan as quickly as possible, while the pandemic shutdowns are still in place, and before the realities of the post-Covid economic picture are clear. There is always the possibility (one for which I cheer) that there will be a massive boom in the economy when the populace is free to return to work, restaurants, and sporting events.

There are danger signs, however. In September, CNBC reported that 60 percent of businesses that were then closed were closed permanently: 97,966 in total, which were gone and never coming back.

The Red Hot Chili Peppers succinctly summarized my perspective as a capitalist in their song, "Californication": "Destruction leads to a very rough road, but it also breeds creation." How long that rough road is, and how quickly it recovers, is key to popular opinion about legalizing millions of aliens and giving them access to the workforce. And to bringing in millions more through chain migration.


There are many factors at play in determining how likely the new president will be in pushing through his amnesty plan for some 11 million-plus aliens. Speed will likely be the most critical, but that could be impeded by the work of congressional Republicans, and the principles of Sen. Joe Manchin.