The first test for Democrats’ hopes of passing an amnesty for illegal immigrants lies in the Senate, where a little-known functionary will decide whether they will be able to skirt long-standing filibuster rules and attach their plan to the $3.5 trillion budget package.
Top aides to Senate Majority Leader Charles E. Schumer, New York Democrat, have privately presented arguments to Elizabeth MacDonough, the chamber’s parliamentarian, as to why legalizing illegal immigrants is a valid exercise of what’s known in Washington as “budget reconciliation.”
The process allows measures that deal with spending, revenue and the federal debt limit to avoid the Senate’s 60-vote filibuster threshold and pass via a simple majority.
Senate Democrats argue that legalizing 8 million migrants would make them automatically eligible for federal benefits, which would deeply impact the federal budget. That’s one of the key tests for shoehorning policies into the reconciliation process.
“A pathway to citizenship is compatible with reconciliation,” said a senior Democratic aide, who requested anonymity to discuss the behind-the-scenes maneuvering. “The act of adding people, many of whom already pay taxes, to the federal rolls will have an immediate and direct impact on the budget.”
An immigration lawyer by training, Ms. MacDonough has served as the Senate’s parliamentarian since 2012. As the parliamentarian, she is tasked with interpreting whether legislative actions are permissible under the Senate’s long-standing rules and precedents.
When it comes to reconciliation, the parliamentarian has significant sway because of the complicated and vague provisions governing the practice, known as the Byrd Rule. Named after former Senate Majority Leader Robert C. Byrd of West Virginia, the rule prohibits “extraneous matter” from being included within reconciliation. That rules out changes to Social Security, policies where the effects on revenue or spending are only incidental, and anything that would increase the deficit beyond the window of the budget.
Ms. MacDonough used the criteria earlier this year to block Democrats from including an increase in the federal minimum wage within reconciliation.
Senate Democrats are pushing for a different outcome on immigration, and they say there’s a precedent.
A parliamentarian in 2005 allowed Republicans to include an immigration provision within that year’s reconciliation package. Although that measure dealt only with unused green cards quotas, Democrats are eager to invoke the precedent.
“Obviously, we’re going to have to meet the reconciliation standards,” said the Democratic aide. “But that’s how you win procedural battles: You find small openings in the rules and push to expand them to meet your goals.”
Senate Democrats have yet to unveil their immigration proposal, but House Democrats have revealed theirs. It envisions a pathway to citizenship for about 8 million illegal immigrants who have DACA status or temporary protected status or are deemed to hold “essential” jobs in the economy.
That proposal was debated Monday in the House Judiciary Committee. Republicans offered amendments to bar from amnesty any illegal immigrants who haven’t received a COVID-19 vaccine or those who have gun crime misdemeanors. Each attempt was shot down by the panel’s Democrats.
Rep. Mike Johnson, Louisiana Republican, proposed barring illegal immigrants with a single drunken-driving conviction. That was defeated, so he proposed barring those with two DUIs. That also was defeated.
He came back with an amendment barring those with 10 DUI convictions. That, too, was shot down by Democrats, who said the bill already barred anyone with three misdemeanors or one significant felony.
Immigrant rights advocates say Democrats must deliver this year after decades of promises.
“We have made the case for broad permanent residency over and over, decade after decade. We have proved our loyalty, our worth and our commitment to this country,” said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights. “After 35 years of obstruction, the other side no longer has any credible excuses to keep legalization from us.”
Experts on the left and right say the final determination of whether amnesty can be used in reconciliation is whether illegal immigrants pose a “net benefit or net drain” on the federal budget.
A Congressional Budget Office analysis of a legalization proposal in 2007 found that it would boost the deficit by “several billion dollars annually.”
A recent report published by the Center for Immigration Studies indicates that adding 8 million immigrants to the federal rolls would cost Social Security and Medicare more than $1 trillion, which could violate the rule about not increasing the deficit beyond the budget window.
“It seems that these long-term costs could impact whether the reconciliation bill meets the requirement of not increasing deficits after 10-years,” wrote Jason Richwine, a resident scholar at the center.
Democrats are ready to take the risk. They say comprehensive immigration reform is implausible in the evenly split Senate.
“We prefer a bipartisan agreement, even if it’s not everything we’d like to see,” said Sen. Robert Menendez, New Jersey Democrat. “But in the absence of doing that, then those of us who believe in immigration reform feel that we have to at least pursue this option and see if it’s viable.”
Republicans say Democrats have refused to compromise.
“Only because Senate Democrats refuse to work with Republicans on a bipartisan bill, [the] fate of citizenship for ‘Dreamers’ currently rests with the Senate parliamentarian,” said Sen. John Cornyn, Texas Republican.
Even if Democrats win Ms. MacDonough‘s approval for the procedural questions, they’ll still have a hard time maintaining unity in their ranks over the policy, said Stephen Yale-Loehr, a law professor and immigration scholar at Cornell University.
“In sum, to succeed, Democrats must thread a very thick immigration string through a very small legislative needle,” he said.
• Stephen Dinan contributed to this report.
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