Democratic lawmakers and the White House are facing pressure to disregard the Senate parliamentarian after the unelected official on Sunday deemed a crucial immigration measure out of bounds for reconciliation, endangering an effort to provide a pathway to citizenship for millions of people.
In a three-page opinion (pdf), Senate Parliamentarian Elizabeth MacDonough advised against the inclusion of Democrats’ immigration proposal in the emerging reconciliation package, arguing the measure amounts to “a policy change that substantially outweighs the budgetary impact of that change.”
Under current Senate rules, which the parliamentarian is tasked with interpreting, all provisions of a reconciliation bill must have a direct—and not “merely incidental”—impact on the federal budget, a highly subjective criterion that most recently sparked intense debate in the context of a proposal to raise long-stagnant minimum wage. The Democratic majority is using the arcane reconciliation process to work around the Senate’s 60-vote filibuster rule, which a number of conservative Democrats are refusing to repeal.
Last week, MacDonough heard arguments from both Democrats and Republicans on the immigration proposal, which would establish a path to citizenship for around eight million Dreamers, farmworkers, Temporary Protected Status (TPS) recipients, and essential workers. Democrats contend that by making millions of people newly eligible for public programs, the change would have a substantial impact on the federal budget—an argument that policy experts have echoed.
Predictably, Republicans rejected Democrats’ case, as did the parliamentarian, who was appointed in 2012 and serves at the pleasure of the Senate’s Democratic leadership.
“Changing the law to clear the way to [lawful permanent resident] status is tremendous and enduring policy change that dwarfs its budgetary impact,” MacDonough wrote.
MacDonough’s decision sparked outrage among progressive lawmakers and immigrant rights advocates, who wasted no time demanding that Senate Democrats and the White House overrule the parliamentarian or replace her. As presiding officer of the Senate, Vice President Kamala Harris has the legal authority to toss aside the parliamentarian’s opinions—a step she refused to take earlier this year after MacDonough advised against a federal minimum wage increase.
“This ruling by the parliamentarian is only a recommendation,” said Rep. Ilhan Omar (D-Minn.). “Senate Majority Leader Chuck Schumer (D-N.Y.) and the White House can and should ignore it. We can’t miss this once-in-a-lifetime opportunity to do the right thing.”
On Twitter, Rep. Rashida Tlaib (D-Mich.) alluded to Republicans’ 2001 decision to fire then-Parliamentarian Robert Dove after he issued a pair of recommendations that threatened the GOP’s tax cuts for the rich.
“An unelected person isn’t a real barrier to the much-needed investments we were elected to make,” Tlaib wrote. “Ignore this ruling or get a new one. The GOP didn’t hesitate when they pushed their corporate agenda.”
Given that the White House has previously rejected calls to overrule the parliamentarian, it’s not entirely clear how Democrats plan to proceed. In July, Biden indicated that he would defer to the unelected parliamentarian on the immigration provision.
In a statement Sunday night, Schumer said he was “deeply disappointed” by the parliamentarian’s advisory opinion “but the fight to provide lawful status for immigrants in budget reconciliation continues.”
“Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days,” Schumer added.
If the Biden administration and Senate Democrats continue to treat the parliamentarian’s advice as binding, they will be leaving significant portions of their domestic policy agenda in the hands of an unelected functionary. In addition to immigration reform, the parliamentarian could soon advise against other key elements of Democrats’ reconciliation bill, from climate provisions to labor law reforms.
“We know that Democrats like Senate Majority Leader Schumer, Speaker Pelosi, President Biden, and Vice President Harris hold all the power to do the right thing and deliver a pathway to citizenship for the millions of immigrant youth, TPS holders, farmworkers, and other essential workers,” Greisa Martinez Rosas, executive director of the immigrant rights group United We Dream Action, said in a statement.
“Brave and powerful Black, brown, and progressive leaders have worked tirelessly to make the inclusion of citizenship in the reconciliation package a possibility,” she added. “Democrats in Congress must deliver on their promises to the people. Leadership is about making bold decisions in times of great need. We need Democrats to be brave like the hundreds of thousands of members of United We Dream Action and our allies.”
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