House Democrats and activist groups are getting more strident in their push to legalize certain undocumented immigrants as part of an upcoming $3.5 trillion budget reconciliation package, putting immense pressure on the Senate parliamentarian when the matter is adjudicated later this year.
Democratic leaders will only have three House votes to spare this fall when the reconciliation package comes up. At least two House Democrats thus far have said the final bill must include a pathway to citizenship for undocumented immigrants, specifically those brought to the U.S. as children, temporary protected status holders, farmworkers and essential workers.
"I will not support any budget reconciliation deal that continues to leave hard-working undocumented taxpayers in limbo,” Rep. Lou Correa, D-Calif., said in a statement Sunday, just weeks after Rep. Jesús “Chuy” García, D-Ill., drew a similar red line.
More Democrats on Monday came out with similar statements, while stopping short of calling the matter a deal-breaker.
“The reconciliation package must include a pathway to citizenship. Pass it on,” tweeted Rep. Lucille Roybal-Allard, who chairs the appropriations panel that oversees Homeland Security. Rep. Jamaal Bowman, D-N.Y., tweeted the same message.
Any immigration provisions must pass a Senate challenge known as the "Byrd rule," which governs what can go in a reconciliation bill. The Senate’s parliamentarian, Elizabeth MacDonough, would issue guidance or ultimately a ruling if there is a challenge.
Democrats have spent months arguing that the budgetary impact of granting legal status to millions of undocumented immigrants, affirmed by the Congressional Budget Office, justifies its inclusion.
A preliminary outline of Senate Democrats’ reconciliation resolution set aside $126 billion, largely to create a pathway to permanent residency for certain categories of undocumented immigrants, as well as $24 billion in border security funding.
Republicans have made their skepticism known and are certain to scrutinize immigration and other provisions for elements that they will argue are “extraneous” and therefore violate Senate rules.
Legalizing immigrants through reconciliation “almost surely will not work, consistent with the rules of the Senate,” said Sen. John Cornyn, R-Texas, during a Judiciary Committee hearing July 21. “Members of the committee know full well that immigration law is not written through our arcane budget procedures.”
In order to comply with the Byrd rule, the legislation must have an impact on spending or revenue, and that budgetary impact cannot be “merely incidental” to a broader policy intent. The Byrd rule does not define “merely incidental,” leaving that opinion up to the parliamentarian.
In a July analysis, Philip E. Wolgin, acting vice president of immigration at the left-leaning Center for American Progress, argued that immigration provisions would comply with the Byrd rule based on what he called a “precedent” from a 2005 reconciliation bill. The Senate version of that bill, which passed when Republicans controlled the chamber, included provisions that created a process to recapture and distribute green cards created, but not used, in previous years.
It also would have expanded the number of green cards issued each year by making spouses and children of an eligible person also eligible. Those provisions were not present in the House version of the bill and did not survive in the version of the law eventually enacted (PL 109-171).
As Wolgin pointed out, no senator challenged the provisions as a violation of the Byrd rule, including the late Sen. Robert C. Byrd, D-W.Va., author of the rule — even though he opposed the language himself.
But James Wallner, a senior fellow at the R Street Institute, countered in a July 20 column that the Senate did not create a precedent at the time “because the Senate did not adjudicate the question at any point during its debate in 2005.”
“The Senate’s presiding officer did not rule that the bill’s initial immigration provisions were Byrd compliant,” Wallner wrote. “The full Senate did not adjudicate the question.”
As a result, he said, “claims that precedents authorize Democrats’ effort to give specific categories of illegal aliens lawful permanent resident status are incorrect.”
A renewed sense of urgency has fueled congressional Democrats because of a recent ruling by a Texas federal judge who struck down the Deferred Action for Childhood Arrivals program. The Obama-era program has provided legal protection and work authorization for hundreds of thousands of “Dreamers” who came to the U.S. as children and know no other home.
But the ruling puts the lives of more than 55,000 DACA hopefuls, whose applications had yet to be processed, in limbo.
“After the DACA court ruling, Congress must step up,” tweeted House Budget Chairman John Yarmuth, D-Ky., who said previously he was unsure whether DACA-related provisions were Byrd rule-compliant. “As House Budget Chairman, I believe we can draft a bill to get it done. After all, immigration through reconciliation has happened before.”