Senate Democratic aides met informally with Senate Parliamentarian Elizabeth MacDonaugh on Tuesday to gauge the prospects of the immigration compromise they had reached for President Joe Biden’s Build Back Better bill. While she didn’t endorse the proposal, she didn’t reject it, sources said to Axios.
The measure passed the House last week with the compromise amendment that provides a 10-year parole for undocumented immigrants, with temporary work permits and deportation protections. The original proposal included a path to citizenship for approximately 8 million undocumented immigrants, including Deferred Action for Childhood Arrivals (DACA) recipients, temporary protected status (TPS) holders, farmworkers, and essential workers. MacDonough, a Senate staffer serving at the pleasure of Majority Leader Chuck Schumer, rejected that proposal. Democrats came up with a second alternative, which would have legalized millions of immigrants who entered the U.S. by 1972 to register for green cards. MacDonough also rejected that.
The House accepted those rejections legislatively, working with Senate Democrats to arrive at Plan C—temporary protections in a parole kind of system. They aren’t too happy about that alternative, however. Dozens of House members, including California Rep. Lou Correa, New York Rep. Adriano Espaillat, Illinois Rep. Chuy García, New York Rep. Alexandria Ocasio-Cortez, and Congressional Progressive Caucus Chair Pramila Jayapal wrote to Schumer in October, reminding him that “the role of the Parliamentarian is an advisory one, and the opinion of the Parliamentarian is not binding,” as well as the fact that “there is precedent of the Presiding Officer disregarding the opinion of the Senate Parliamentarian.”
This week, 91 House Democrats reiterated that message to Schumer, President Pro Tempore Pat Leahy, and Senate Judiciary Committee Chair Dick Durbin. “Whether we keep our promise or not is a question of political will,” they wrote. “We cannot let an unelected advisor determine which promises we fulfill and which we do not, especially when the vast majority of Americans—in both parties—want us to provide a pathway to citizenship.”
The parliamentarian got this role in the Congressional Budget Act of 1974, which set out the budget reconciliation process. It allows Congress to pass budget priorities that directly affect spending, revenues, and the debt limit in an expedited process, meaning it can pass with a simple majority and not be subject to a filibuster. The spending and revenue rules are the problem here, established by the “Byrd Rule,” named for former Sen. Robert Byrd, which was intended to limit provisions in reconciliation bills that are “extraneous” to budget goals.
The parliamentarian reviews the various provisions—the “Byrd Bath”—and advises senators on whether they meet the criteria. Even if she rejects a provision, she can be ignored. The provision can stay in the bill, subject to a point of order from an opposition senator. The Senate debates that point, then the presiding officer—in this case it will be Vice President Kamala Harris—can rule on whether it violates the Byrd Rule or not. If she decides it doesn’t and should stay in the bill, it takes 60 votes to overturn her ruling.
So Democrats can fulfill the promise they’ve been making for decades and create a path to citizenship. It is precisely a matter of political will. Parole, while potentially acceptable to the parliamentarian, is at best a Band-Aid. “For decades, immigrants have sought relief from the precarity of jumping from one temporary status to another in the only country they can call home,” the House lawmakers point out. “Another temporary status would merely extend this precarity.”
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