So much for democracy! It is not an exaggeration to say that come fall, one unelected official will decide the fate of immigration status for millions of undocumented immigrants!
Meet Elizabeth MacDonough, the Senate Parliamentarian.
She was appointed by the then-Senate Majority Leader Harry Reid [1], and not elected by the people. And just like she ruled to remove $15 minimum wage provision from COVID Relief Bill [2] earlier in the year and keep the opening of oil drilling in Arctic National Wildlife Refuge in 2017 Jobs and Tax Cuts Bill [3], she will most certainly rule on whether legal status may or may not be given to qualified immigrants.
So, how on earth is this possible? Before we hurl polarizing judgments at her, let's understand the current affairs and we will come back to this piece at the end.
The two parties are not going to reach a bipartisan agreement on immigration and secure 60 votes (including that of 10 Republicans) necessary to pass a bill in the Senate. That's just the political reality of 2021 (post-Trump). Considering that the populace knows that Democrats control all three wheels of the legislative process (Senate, House, and the White House) and does not care (and frankly, should not) about the need for Democrats to convince 10 Republican Senators, has put the majority party under quite a pickle.
"We tried to pass but Republicans didn't let us, but still keep us in power" is just not as powerful a message for 2022 election cycle as "See, you got nothing for fighting to keep Dems in power, elect us!".
Enter Budget Reconciliation Process.
For certain types of bills that have significant budgetary impacts, they may be passed in the Senate through a majority (called simple majority) of 50 votes*. Democrats, obviously, have turned to that. Spearheaded by Bernie Sanders, the party has decided to add just about all of their legislative priorities into one massive legislative initiative.
Relevant members of the Democratic party have been greenlighted to move forward on this [4]! By September / October 2021, they will put together a ginormous package with all the provisions that the party wants passed including a pathway to citizenship for certain immigrants (Dreamers, TPS holders, Farm Workers, and others). This will be part of the package [5].
The sticking point is that naturally there is a limitation to what can be passed through budget reconciliation, or else the whole super-majority requirement in the Senate would be moot. So, before the package is carried to the floor of the Senate for a vote, the minority party (or any Senator, for that matter) can object to any provision in the package. There is 99.9% chance that Republicans are going to object to the immigration provision (make it a 100%). I am leaving 0.1% because behind close doors even Republicans accept the merits of providing legal status to qualified undocumented immigrants but do not want to admit that in public for obvious reasons. So, they can let the provision slide and sloganeer "Dems passed mass-amnesty" without paying any political price for doing so (how many out there will know that Republicans could have at least objected its inclusion?).
In reality, they will object. And when they do, it is only then the provision is dumped onto the Senate Parliamentarian's desk to rule on the objection. And that's big question mark. How will she rule?
The rule says, in essence, that any provision in the budget reconciliation package must be in there because it impacts budget and may also just happen to be a policy change, but NOT the other way around. You can't add a policy change which may also just happen to have a budgetary impact. The scale and size of the budgetary impact and policy implications are important, but so is the intent.
And that's the gray area. It is unquestionable that providing legal status to a wide swathe of qualified undocumented immigrants will have budgetary implications, but will the Senate Parliamentarian be convinced that the ENTIRE purpose of immigration reform is to "boost" the economy?
If she thinks so, then a whole bunch of people get green cards and a chance to a stable living! If she doesn't, you've got a HUGE problem.
The historical trend isn't promising. She thought opening oil drilling in a national refuge area was for budgetary reasons, while the minimum wage provision wasn't. One can see why. And in that line of thinking, she might just rule against the immigration provision as well. Democrats misrepresent as a precedence the immigration provision added in budget reconciliation package in 2005. In that case, nobody had objected! So, it wasn't even sent to the Parliamentarian for a ruling. Objection is the whole point because raising none is akin to a super majority!
How she will rule on the immigration provision is not the scope of this article. The point is that she will! And if she rules not in favor of immigration, what can be done to save it? Nothing much, unfortunately.
Technically, Senate Parliamentarian ADVICES and it is the presiding officer, someone from the majority party, who gets to have the final say. Generally the parliamentarian's rulings are echoed by the presiding officer (and hence, the majority) [2]. The presiding officer can technically ignore the parliamentarian but that will be the same as making do with the super majority Senate requirement and hence a spectacular precedence for future. This precedence is not something that Democrats (or any party) in general are supportive of setting, even when the progressive wing of the party tried persuading their leadership to do so after the minimum wage clause was ruled on unfavorably [6].
There is no good reason for the Democratic party to set the precedence for immigration provision this time around either. Having immigration provision as ONE of the many in the package, a partial setback is politically digestible if most of the rest of priorities are included.
The rulebook, however, does allow a super majority to overrule the parliamentarian's ruling (it's technically the presiding officer's decision that has to be overruled). If it comes to this and overruling is put to vote, 10 Republicans will NOT agree to it because it's essentially a vote FOR immigration reform (with an appropriate right wing political price tag!).
It is more than unfortunate that United States, a nation of immigrants, has been a battleground for an immigration reform for decades. The fate of millions is either in the hands of the unwilling, or the unelected.
*Assuming the 51st vote from VP to break the tie.
[1] https://constitutioncenter.org/interactive-constitution/blog/who-is-the-senate-parliamentarian-and-what-does-she-do
[2] https://www.reuters.com/world/us/us-senates-reconciliation-process-its-not-way-it-sounds-2021-08-10/
[3] https://thehill.com/policy/energy-environment/365772-congress-votes-to-open-alaska-refuge-to-oil-drilling
[4] https://www.cnbc.com/2021/08/11/senate-passes-3point5-trillion-budget-resolution-after-infrastructure-bill.html
[5] https://thehill.com/latino/563047-manchin-signals-support-for-immigration-in-budget-deal
[6] https://reason.com/2021/02/26/democrats-cant-use-reconciliation-to-pass-a-15-minimum-wage-heres-what-they-might-do-next/
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