If media is to be believed, the Democrats, with their collective wisdom, have devised a "Plan B" to have immigration reform passed as part of the budget reconciliation process. This is after their initial pitch was snubbed by the Parliamentarian in a rare written ruling.
The Plan B is to move the so-called Registry Date from January 1, 1972 to a recent date (some reports hint towards a date in 2010). This registry date serves as a cutoff date for entry into the United States for non-citizens who have been continuously residing in the country and wish to adjust their status to that of a permanent resident.
This is not going to pass muster with the Parliamentarian. It fails to refute, or even address, the objections presented in the ruling over the original plan. If you've read my analysis of the ruling (the post is appended below), the objections can be summarized as:
[objection # 1] the policy change creates a new class of aliens that will qualify for permanent residency, [objection # 2] and the social impact of which far outweighs the fiscal and budgetary impacts. [Objection # 3] Not only is the precedence for such a policy missing but [Objection # 4] this change may easily be reversed by a simple majority in future.
Let's set aside Objection # 3 and # 4 since they do not strictly fall within the confines of the Byrd Rule - the criteria that decides which provisions are sound for a reconciliation package.
But the first two objections are absolutely legit.
Let's start by tucking away, once and for all, the supporting argument for Plan B that does not even address the Parliamentarian's objections (makes you doubt the earnest of the Democrats). Moving the registry date is not akin to merely updating a date while keeping the law intact as some Democrats would have us believe (Senator Menendez from NJ, specifically).
First, if the law remained unchanged with this plan, then what's the need to bring it to the floor of the legislative body? That's easy. Second, the date is the central pillar of the law. There is no other criteria in the relevant provision that comes close to defining the eligibility criteria. Therefore, if you change the date, you explode the scope of law beyond recognition. Changing the Registry Date is changing that law. Period.
The Parliamentarian, however, did not raise a concern over the complexity or the language of the text. She did so over its consequences in practice.
In theory, moving the registry date may not create a new definitive class of aliens, like the so-called essential workers, that is suddenly eligible to adjust their status. But in practice, it does. It brings into the fold all the aliens who have been residing in the United States since this new registry date and creates a new "unnamed" class of its own that is eligible to adjust status.
And that is exactly what the Parliamentarian objected. A large part of this new class will be the undocumented population. And this population, with no immigration status heretofore, will be able to become permanent residents. That "journey" is too big of policy change as compared to the budgetary impact for the Parliamentarian. And thus it walks right into the second objection.
THE ONLY POTENTIAL SOLUTION
Parliamentarian has left slightly ajar the door for some immigration provisions. Keeping aside the legal immigration provisions to clear the visa backlogs (they haven't been presented to the Parliamentarian), her objections seem to focus primarily on the "totally" undocumented population, and not those with some form of temporary legal status.
If you revisit my analysis, it is clear that her objection is around a brand new class of aliens. One may argue, then, that population currently protected by statutes and orders such as DACA, TPS, and DED are NOT a brand new class of aliens. Most of this population is authorized to work in the United States (as a result pay taxes), eligible for a wide swathe of federal / state benefits including FHA loans to buy homes, and are protected from deportation.
The only argument that may refute the Parliamentarian's objections is to allow such population to adjust their status. It will still not be a sure shot win. The impact on the budget will not be as much because most of the population already enjoys a plethora of fiscal benefits that feed into the budgetary assessment. However, a hefty fee to adjust status and the eligibility to all federal benefits and safety net programs may just carry the boat across.
It will still be a massive policy change. But comparative to finances involved, is allowing free travel, unconditional government employment opportunities, and petitioning relatives big enough for this plan to be excluded (since they already enjoy rest of the "securities" of being a permanent resident?
Say what you will, this is a million times better of a response than what we are hearing in the media about the so-called "Plan B".
<<< ORIGINAL POST - ANALYSIS OF PARLIAMENTARIAN'S INITIAL RULING >>>>>
"Within hours and days", as Senator Durbin (D-IL) on the Senate Floor announced, of being blocked by the Parliamentarian in their efforts to implement immigration reform (especially legalization for undocumented immigrants) the democratic leadership has begun to draft a "Plan B" for consideration. And as per Senator Durbin, in their pockets also rest Plan C, D, etc.
There are also lukewarm calls to fire the parliamentarian or at the very least overrule her decision, both of which seem unlikely for reasons not in the scope of this article. The most feasible path for any kind of immigration reform is to "convince" the parliamentarian to approve the revised proposals.
In order for us to understand how the parliamentarian WILL rule on the revised proposals, it is imperative for us (and more importantly for the Democrats) to understand why the original plan was rejected. So, let's use the privilege of having access to the ruling in writing to dissect it and understand objections of the Senate referee.
Observation # 1: Excerpt from the ruling: "While a portion of that 8 million has one form or another of temporary legal status under statute or Presidential order, the vast majority (nearly 7 million by CBO’s estimate) are unlawfully present and generally ineligible for adjustment of status under current law (as are some of the temporary status holders)."
The parliamentarian clearly differentiates a subset of eligible immigrants with temporary legal status (such as DACA and TPS recipients) from those who are "unlawfully present". Her stress is on the latter group of "nearly 7 million" people and the fact that the proposal would create a new class of immigrants eligible for adjustment of status.
Parliamentarian's Objection # 1: The proposal creates a NEW class of immigrants applicable for permanent residency (differentiated from classes that already exist such as DACA and TPS).
Observation # 2: Excerpt from the ruling: "Broadly speaking, as most of the beneficiaries of this policy change are not in status, there will be other [than social safety net programs such as Medicare, Medicaid, etc.], life-changing federal, state and societal benefits to having LPR status... LPR status would give these persons freedom to work, freedom to travel, freedom to live openly in our society... and to reunite with their families and... to apply for citizenship – things for which there is no federal fiscal equivalent."
The parliamentarian details the benefits of having permanent residency as effecting MORE THAN just the financials of the recipient (in the form of opportunities) and budgetary (in terms of outlays for the governments in the form of safety net programs). "The value of having the security of LPR status [green cards]..." is immense with no "... fiscal equivalence."
Lastly, again the Parliamentarian cleaves out people with some form of temporary legal status (like DACA and TPS recipients) from this objection by stating that "MOST of the beneficiaries of this policy change are not in status". To state the corollary, SOME of the beneficiaries of this policy change ARE in status and as a result MAY already have many of the benefits outlined.
Parliamentarian's Objection # 2: The proposal will grant benefits, by opening a pathway to residency, for a NEW class of immigrants that are FAR BEYOND just fiscal and hence outweigh the budgetary implications.
Observation # 3: Excerpt from the ruling: "Each provision [from several previous reconciliation bills] can be distinguished from the current proposal. "
The Parliamentarian essentially works through all the previous provisions in reconciliation bills and dismantles them as legitimate precedence for immigration reform.
Parliamentarian's Objection # 3: The proposal has no true previous precedence to grant legal status to a new class of immigrants with no status.
Observation # 4: Excerpt from the ruling: "Finally, it is important to note that an obvious corollary of a finding that this proposal is appropriate for inclusion in reconciliation would be that it could be repealed by simple majority vote in a subsequent reconciliation measure."
This is self-explanatory.
Parliamentarian's Objection # 4: The proposal can just as easily be reversed in future [that is green cards granted now can be "taken away"] as part of future reconciliation bills.
If the democratic party is earnest in getting at least some immigration provision passed within reconciliation, they will heed to at least the first three objections and create proposals that are shielded from them. The last objection can be debated. It is not as easy to "take away" legal status, given the "reliance interest" clause (just ask President Trump who exhausted his presidency to repeal DACA, which was not even a Congress act but merely a presidential memo. It was, in fact, not even an executive order.)
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