On December 16, Senate Parliamentarian Elizabeth MacDonough issued an opinion stripping a “parole” amnesty for upwards of 6.5 million aliens illegally present in the United States from H.R. 5376, the “Build Back Better Act” (BBB). Her opinion is not that big a surprise: This is the third attempt by congressional Democrats to sneak an amnesty into that environmental and social spending bill, and the third time that the parliamentarian has shut them down. Expect them to keep trying, at least publicly.
The Parliamentarian and “Reconciliation”. As the Congressional Research Service (CRS) has explained, both the House and the Senate have an “Office of the Parliamentarian”, whose role is “to provide expert advice and assistance on questions relating to the meaning and application of that chamber’s legislative rules, precedents, and practices”.
Given the highly polarized environment that defines the U.S. Congress in 2021, it may be a surprise to most Americans to know that the legislative branch has any rules at all. While the norms that governed the Senate in my youth (back in the early 2000s) have been somewhat eroded in the interim, that body still accedes to certain guidelines on how bills can be passed.
Many of those rules are intended to protect the rights of the minority party in the Upper Chamber. While to some degree, adherence proceeds from the comity that defines the Senate, it is also self-serving: Today’s majority party could be tomorrow’s minority, a fact that is literally true in a Senate where each party holds 50 seats, and any defection would shift the balance of power.
Two particular interrelated concepts that preserve minority rights are the filibuster and cloture. Simply put, they generally require that any bill have the support of 60 senators before it can be passed.
There are plenty of people who dislike these rules and would change them if they could. Doing so would mean that a simple majority of senators (Vice President Kamala Harris, as president of the Senate, could break a tie), which would make the Senate perform like the House, where a simple majority rules. Given some semblance of respect for tradition and the self-interest I have explained above, that’s unlikely.
That does not mean that a bare majority can’t advance certain legislation. Which brings me to the BBB.
H.R. 5376 is facially a “reconciliation” bill. Reconciliation is a legislative maneuver that allows the party holding majorities in both the House and Senate to pass bills with a simple majority on a party-line vote.
Reconciliation was not created to trammel minority rights, per se. Rather, CRS explains: “The purpose of the reconciliation process is to enhance Congress’s ability to bring existing spending, revenue, and debt-limit laws into compliance with current fiscal priorities and goals established in the annual budget resolution.”
The Byrd Rule and the Byrd Bath. In the Senate, however, reconciliation bills are subject to the “Byrd Rule” (formally section 313 of the Congressional Budget Act of 1974). Adopted in 1985 and named for the late Sen. Robert Byrd (D-W.Va.), the rule “generally prohibits the inclusion of material considered extraneous to the purpose of a reconciliation bill”.
Among items that are “extraneous” under section 313 of the Congressional Budget Act are any provisions that “produce changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”.
When senators raise challenges that provisions in a pending reconciliation bill are “merely incidental” to the budget, the matter goes to the Senate parliamentarian for what is known as a “Byrd bath”. There, each party offers arguments as to why those provisions should be included or not under the Byrd Rule.
The parole amnesty was challenged by Senate Republicans as extraneous, and MacDonough’s opinion was the outcome of that Byrd bath process.
The Parliamentarian’s Amnesty Opinions. In a November 5 post, I explained that the parole provision (section 60001 of the BBB) was actually the third time that congressional Democrats had attempted to include amnesty in the reconciliation bill.
The first iteration would have given green cards to most aliens illegally present in the United States (the details are in a September 13 post), and in an opinion issued on September 19, the parliamentarian ruled that amnesty “a policy change that substantially outweighs the budgetary impact of that change”.
Section 249 allows aliens who entered before a given date to apply for green cards, even if they are in unlawful status. The current registry date is January 1, 1972, and while the date the Democrats proposed is unknown (negotiations with the parliamentarian are generally informal), it presumably would have moved it up decades.
That would not have been the direct path to a green card that Reconciliation Amnesty 1.0 would have been, but it would have assured that virtually all illegal aliens in the United States would have had access to lawful permanent residence. MacDonough nixed that one, as well.
The latest (Reconciliation Amnesty 3.0) would have extended “parole” — a limited immigration status — to all aliens who entered the United States legally or illegally prior to January 1, 2011, and who are now in unlawful status. That parole would have been good for five years, renewable for an additional five-year period, available to most aliens who are not inadmissible on national security or criminal grounds.
As I explained in a December 1 post, that by no means meant that aliens with criminal convictions — including convictions for serious crimes — would be barred from receiving parole under BBB. And while parole is a limited status, it would have cleared a major impediment to many if not most of those aliens obtaining green cards.
MacDonough’s latest opinion is not yet available, but Politico reports “the parliamentarian wrote that the provision would create a new class of about 6.5 million eligible individuals, ‘nearly the same number of people as the previous two plans.’” Thus, she concluded, “these are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact.”
Where Does Amnesty Go from Here? Senate Democratic leadership is not abandoning the effort, however.
In a late-night statement on December 16, Senate Majority Leader Chuck Schumer (D-N.Y.), Democratic Whip Sen. Dick Durbin (D-Ill.), and four other Democrats asserted: “We strongly disagree with the Senate parliamentarian’s interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act.”
They could always ignore the parliamentarian’s opinion, but that would mean bringing the entire Democratic caucus along, and that appears unlikely.
Sen. Joe Manchin (D-W.Va.), for one, is on record as stating that he would vote to uphold MacDonough’s decision, explaining on December 9: “The bottom line is the parliamentarian, you stick with the parliamentarian, that’s all. ... You stick on every issue. You can’t pick and choose.”
Sen. Manchin likely speaks for at least a few other Senate Democrats in closely contested seats who did not want to take a vote granting amnesty to millions. One of those Democrats, Sen. Catherine Cortez Masto (D-Nev.), who signed onto the Schumer/Durbin letter, faces a tough reelection challenge from Adam Laxalt, scion of a Nevada political family and a former state attorney general.
That said, Sens. Schumer and Durbin are experienced political operatives who know the rules and have any number of potential tricks up their sleeves. Whether they want to run the risk of losing their majority over amnesty, however, is a different issue.
They may simply be eating their cake (by being seen to support amnesty) and having it, too (by avoiding a vote that would be unpopular in many quarters, and that could cost them precious seats). And if polling firm Rasmussen is correct, amnesty is not as popular as the majority leader and whip contend.
The December 14 Rasmussen Reports Immigration Index reveals that 40 percent of respondents in its most recent polling “favor giving lifetime work permits to most of the estimated 12 million undocumented residents of all ages who currently reside in the United States”, while 53 percent are opposed — 36 percent “strongly” so.
Many American voters who are ambivalent about immigration generally would likely oppose amnesty, at least while illegal migration at the Southwest border is running at historically high levels. Those who take a slightly more restrictive view, however, would be champing at the bit to voice their displeasure at the ballot box were amnesty forced through on a party-line vote.
Senate Rules and Math. The U.S. Senate runs on two things: Rules and math. The math is the number of seats to pass legislation and maintain a majority. When there is a disagreement, the parliamentarian decides on the rules. She has. For a third time, the parliamentarian has blocked congressional Democrats' attempt to pass amnesty on a party-line vote. It may not be the last time.