Senate parliamentarian strains to block long overdue immigration reform

Senate Parliamentarian Elizabeth McDonough’s stunning recent decision to disallow immigration proposals from the budget reconciliation bill made it abundantly clear how eager she was to get to “no,” despite ample precedent and a strong rationale that would allow for the immigration proposal to be included in a reconciliation bill. There was a pathway to “yes” that was well-considered and legitimate. She chose the other path, and her argument shows that she had to work plenty hard to get there. 

Substantial immigration provisions have passed under the budget reconciliation process four times since 1990, most recently in 2005. Instead of relying on the considerable similarities between these prior efforts and the current one, she relies on their differences. In deciding whether the immigration proposal’s substantial budgetary impact is in proportion to its other impacts — a central question for the parliamentarian — she makes an argument that the overall impact is so large as to be incalculable, and therefore it is out of balance. That’s like comparing, say, the life-or-death implications of health reform to its budgetary impact. That’s the kind of argument you make when you are trying to get to “no.” 

Another particularly egregious bit of reasoning in McDonough’s decision is her assertion that one major difference between the immigration measures that previously passed via budget reconciliation and the current proposal is that the prior ones had bipartisan agreement. There is very little in the current reconciliation bill that has bipartisan agreement. Bipartisanship, or the lack of it, is not one of the conditions for allowing a proposal to be included in budget reconciliation. 

This gets to the crux of the matter. McDonough calls the immigration proposals that passed on prior reconciliation bills “less fraught.” Although it’s buried in the text, this is the punch line. What’s at issue here really is that getting anything done on immigration — even something that the country overwhelmingly supports — is hard. There will be yelling, especially by Republican senators who used to support elements of this proposal, particularly the Dream Act, but will not even consider allowing it to come to the floor on its own. Her own analysis reveals that this is why the parliamentarian balked, even though there is a pathway that allows the Senate to at long last do its job on this issue. 

The parliamentarian’s action also revealed how serious the Senate Democrats are about getting these immigration proposals through; Majority Leader Schumer announced almost immediately his intention to send a reshaped proposal back to the McDonough for consideration. This stands to reason; a major component of the Democrats’ proposal is to finally address the legal status of several groups of longtime residents of the U.S., most notably Dreamers, immigrants who have grown up here and are as American as the rest of us. In fact, the Dream Act for which this group of immigrants is named, has enjoyed bipartisan support for two decades. In light of recent court decisions, inaction from Congress will likely lead to a catastrophic loss of status for hundreds of thousands of Dreamers who are currently protected by

Deferred Action for Childhood Arrivals

(DACA). Democratic moderates in the Senate have already signaled their support. After several heartbreaking brushes with the finish line over the last 15 years, Senate Democrats know that it is long past time to do what the American public supports and get this issue resolved.  

Republicans are trying to have it both ways: They block immigration reform, while blaming Democrats for the problems that result from their inaction. Then they campaign as the party who is toughest on a problem that they refuse to fix. This impasse has prevented progress on the Dream Act and broader immigration reforms for decades. The first of the young Dreamers who courageously shared their stories, persuading a bipartisan group of Congress members to introduce a bill to put them on a pathway to citizenship, are now nearing their 40s. Democrats in the Senate are right to push to move this legislation at any opportunity. 

There is a clear, legitimate pathway on the reconciliation bill to allow immigration legislation that the public — if not their Republican senators — clearly supports. This is the time. If the Senate parliamentarian will not follow the clear path that allows her to get to “yes,” the Senate should overrule her and get the job done. 

Cecilia Muñoz is a senior adviser at New America and the former director of the Domestic Policy Council in the Obama White House.