One unelected person can CRUSH immigration reform in 2021

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/

Developing Story: India - USA Travel Ban News

US Administration placed a sweeping travel restriction on non-essential travels by Indian nationals with no permanent ties to the United States. 

This is a developing story - follow this space frequently to stay posted.   

June 24, 2021 Update

Though there is no official confirmation, sources close to Aviation industry and American embassies in India have reported to us that an announcement about the timeline and conditions to lift travel restrictions are planned to be made by or close to July 1st, 2021.  Travel restrictions are planned to be lifted in the second or third week of July 2021. The leniency may allow fully vaccinated Indian nationals with recent negative COVID tests to commence travel to US.

June 23, 2021 Update

Though there is no official confirmation, sources close to Aviation industry have reported to us that the travel restrictions are planned to be lifted by or close to July 1st, 2021. The leniency may allow fully vaccinated Indian nationals with recent negative COVID tests to commence travel to US.

Democrats! Learn from Republicans!

What Senators Manchin and Sinema seem to ignore is the fact that voting to rescind the 60 vote cloture rule doesn't automatically sign them up for every legislation spat out from the House with support from remaining 48 Democratic Senators in the current Congress (The Confused 117th!). 

These two senators - for those who may not know - are the obstacle between Democrats and the end of Filibuster as we know it. The ostensible rationale for not siding with their party on this issue is that this will essentially abolish the last rule standing that encourages bipartisanship. 

This is notwithstanding the extended term lengths of 6 years and the election cycle for only a third of senators every two years, which were the instruments implemented by the Founding Fathers to make the upper house a more deliberative body than the impassioned House. Filibuster, on the other hand, isn't from the minds of the Founding Fathers. The two Senators seem to ignore these realities as well.

If we imagine a Senate with no 60 vote threshold for passage, then still only a unified majority party can move the bill to a passage. That is, the Democratic party would need the backing of the entire caucus to pass a legislation. And such a legislation that receives the blessings of centrists like Democratic Senators Manchin and Sinema are indeed worthy of the passage. After all, an equally divided Senate is a mandate for progressives to find common ground within their party and move the United States a bit to the left. A bit because Manchin and Sinema will not let it swing wild. 

Now imagine a majority of 54 Democrats with no cloture rule. This would be a mandate to steer the ship aggressively towards left. Even if Manchin/Sinema pair dissents, Democrats will most likely still have the votes to move forward. You get the point! 

This is exactly what the Republicans did when they were in the majority. For their tax legislation, they (including President Trump) came together and passed it with zero, zilch, Democratic support. Did McConnell stop for a second to question the partisan nature of the legislation? Of course, not. (Is he one of the longest serving, most consequential, Senator and Majority leader in the history of American Government? Undoubtedly, yes.) Granted they didn't need to because of the reconciliation rule that allows certain fiscal bills to pass with only a simple majority (51 votes). But neither do the Democrats need to keep the Filibuster. 

You see Republicans are content with keeping filibuster even when they are in the majority. Their agenda is more often than not fiscally oriented and, guess what, it's covered by the reconciliation. So, each fiscal year during which they hold the majority, they can come up with a mammoth omnibus bill, stuff all their pipedreams and pass it without Democratic support. They never, ever, care for it - including for the support of Manchin or Sinema, for that matter. 

Democrats, however, are concerned with social progression which deals with strengthening of social welfare for the poor and giving rights to underprivileged. Whether you agree to such an agenda or not, they are costlier! Hence, reconciliation process doesn't cover them! So what you end up seeing is desperate acts from Democrats to jamming social reforms for undocumented immigrants, for example, in the fiscal budget with hopes that the parliamentarian will not strike it down (which she will!).

So, what does this all come down to?  If Democrats don't end the Filibuster, other than passing a slim legislation to legalize DACA recipients (even this is a big maybe!) they really won't be able to pass any flagship progressive agenda. They would have failed. And McConnell is going to remind everyone of that come 2022 election cycle. 

President Biden's Executive Action on DACA

President Biden, on his first day holding the land's highest executive office, signed an executive order to "preserve and fortify" DACA. Though it has sent a wave of relief across affected immigrant population, the move is largely a symbolic one. 

The reason is simple. DACA, as it stands today, is fully reinstated by a federal court order from NY after the judge had deemed former Acting Secretary of DHS Wolf's actions unconstitutional in the light of the fact that he had yet to be confirmed by the Senate. On the other hand, DACA's constitutionality is being challenged in a "replay" federal court lawsuit in Texas. Judge Hanen, who happens to be an immigration hawk, had decided against nullifying DACA the last time the subject was brought to his desk. The reason was surprisingly seen to be driven by an entirely humanitarian rationale in that the judge was not willing to put hundreds of thousands of lives in peril because of a lawsuit brought few years too late in front of him. As of today, Judge Hanen is facing the question, this time head on, of DACA's  constitutionality as an executively authorized program.

Moreover, Supreme Court had kept DACA in place not because it had deemed the order to be constitutional (in fact, the court was crystal clear that it wasn't passing judgement on the constitutional merits of the subject), but because it wasn't repealed by Trump administration in an appropriate manner given the significant "reliance interest" of DACA recipients and their families. 

President Biden's latest executive order, if looked upon with a magnifying glass, really isn't going to amount to much. Current administration is going to keep the program in place, hence, the question of repealing it in any manner is irrelevant. If, however, Judge Hanen concludes the program to be unconstitutional and decides to scrap it altogether, there's nothing much Biden administration can do from an executive point of view other than gear up for a legal challenge. And if, by a miracle, Hanen marks it as constitutional, then DACA is free. 

For now, DACA, because of NY court order, is in place in full force. 

What Biden has done by signing this order is project DACA's place in his list of priorities. What really is needed is a legislative relief for the recipients covered by the program. Permanent residency and a life of dignity is all there is left to be given. But with Congress, it's still not inevitable. 

 

Immigration in 2021

 "Extreme demands followed up by small, slow concessions." This is the topmost negotiation tactic according to Program on Negotiation at Harvard Law School.  And that's what US Citizenship Act of 2021 is. It's an immigration package submitted by President Biden on his tenure's first day to Democratic leaders, which members of both parties would admit, huddled in the corners of Capitol Dining Hall, is bonkers. 

It's a posturing tool for both sides. Senator Chuck Grassley (R-IA) has already tagged the idea as "mass amnesty", rightly so. The bill provides a pathway to citizenship for almost all non-criminal undocumented immigrants who were present in the US before January 1, 2021. Even to a democratic-liberal like moi, it just doesn't sound right. It's not respectful to legal immigrants to grant pathway to green cards to those who overstayed their visa last Christmas! 

Democratic Hispanic Caucus, on the other hand, is on its way to handing out fliers and pamphlets on the streets of New York and Chicago hailing the greatness of the bill [metaphorically, although not far fetched!].

Both sides know this isn't going anywhere. 

The greater truth which cannot be ignored is that within four years since former President Trump took office, American people have decided to hand over the reigns of House, Senate, and the White House to Democrats,  including a surprise victory in Georgia for both President Biden and the two Senate seats. This is a clear message for Democrats to get something done on immigration grounds. The key word is "something". 

Or else, their majority won't survive come 2022. 

The one voice of reason and rationale is that of Senator Dick Durbin (D-IL), who is the great-grandfather of the Dream Act (having introduced the bill in 2001 for the first time). He understands that where there exists consensus, it must be reached. The one provision in this newly plated package that hands out permanent residency to Dreamers and TPS holders is what's doable. 

Rest is fluff. 

It is a fact that a filibuster proof majority in the Senate exists in support of providing legal status to Dreamers. And it is also a fact that perhaps nothing else can be shoved down Republicans' throats. So, unless Democrats go on a crusade to do away with filibuster and totally derail the immigration negotiations, Congress needs to close this chapter with Dreamers. 

President Biden and Democratic Caucus needs to portray a year from now that the gridlock has been unraveled. That will happen if they take advantage of small crannies through which some legislative water can seep through, instead of trying to axe out a gaping hole. 

Great cause, misplaced approach

 Editorial for Improve the Dream. (https://www.improvethedream.org/)

US immigration policy is a travesty to say the least.  Why a skilled worker / entrepreneur has to wait for decades to obtain residency is beyond me. After all, the mission statement for any immigration system is to attract and retain productive immigrants.

 

For what it's worth, you can count on my support to ImprovetheDream. E2/H4 child dependents should not have to face a situation where they "age-out" at 21 and have two choices - self-deport from a country in which they spent their formative years or go out of status. This is an ugly decision point. 

 

Having said that, I do not agree with your approach. For any cause to find a fruitful conclusion, it must first find its own voice and avenue toward justice. However, the first sentence on your website explaining the cause mentions DACA and Dreamers. This emphasis on a parallel fight by DACA risks reducing your cause to a mere "if undocumented immigrants can get work permits and fight for green cards, why shouldn't we be included in their fight."

 

That is not good enough. That is, sorry to say, piggy-backing.

 

The similarities in your cause and DACA's end at the word "childhood". The two groups have lived and led completely polar opposite journeys.

 

The reason DACA recipients are afforded work permits upon turning 18 and in-state tuition (in some states) is because they grew up in a household with undocumented parents with average annual income of around $36,000. It is driven by "economic necessity" (USCIS term). To request a work permit, a DACA recipient has to submit a worksheet (a balance sheet) with household income, assets, and expenses. USCIS uses this worksheet to adjudicate work permit cases.

 

Average household income of employment based visa holders is well above $100,000. And this number is at best on the lower range. Therefore, annual income, assets (most visa holders have multiple cars, own single family homes, etc.), and expenses will not justify economic necessity. The stress is on the term "necessity".

 

A DACA recipient may not leave the country but for exceptional reasons with no guarantee of being allowed to re-enter. If denied reentry, they face a minimum 10 year ban from a country they've called home (even after that, chances of being granted a temporary visa are slim).

 

Child dependents for visa holders do not face such unreasonable travel restrictions.

 

If not for DACA, these recipient would have two choices: continue to live under the shadows and never be able to pursue a professional career, or, leave the country and not be allowed reentry for at least 10 years .

 

Child dependents of visa holders have a path to transfer to another visa (like student, etc.) and eventually be able to acquire a work visa.  But most importantly, if they choose to leave the country, they are not barred from coming back.  These are not desirable choices, but any objective observer would pick these over the choices granted to an undocumented youth.

 

ImprovetheDream is not asking to be equated to DACA. It is not asking for a work permit until parents are granted green cards.  The ask is to be allowed to join the fight of DACA recipients close to the finish line. The ask it to be put on a path to a green card, when the journey to the finish line for these two groups was completely different. 

 

I would like to reiterate that if it was up to my vote, I would vote to give green cards to both DACA and child dependents of visa holders because it is the right thing to do and beneficial to the US.  But the reason your movement has not gained such traction as that of DACA's and is overtly not included in any immigration reform is precisely because your cause is out of focus. Your movement needs its story independent of DACA. That journey will reveal that the cause for aging-out is absurd wait times involved for residency for parents. That is what needs to be fixed.

 

Unless the movement embraces its story, which will lead to its own path, it won't get the support from the "immigration reform" movement. You will end up with support of only the likes of Senator Rand Paul who have a fairly unsuccessful track record of getting anything passed.

 

Fight for shorter green card waiting times for parents (which I support), and not for inclusion in the DACA population. Yours is not their journey, and theirs is not yours.

 

Best of luck. 

Ending Filibuster: a Distant Reality

 As we head into Georgia runoff, #Endthefilibuster has started trending. This is not to discount the probability that David Perdue and Kelly Loeffler are still the favorites going into January 5th extremely consequential election. 

The election can lead to a 50-50 divided Senate if both Democrats claim victories. VP Kamala Harris will break the tie handing the majority control to Chuck Schumer (D-NY). 

Most progressives, and even some moderates (including Joe Biden), are in favor of ending filibuster cloture rule. Today, at the core of legislative gridlock is the rule that requires three-fifth of Senate's approval (60 votes) to close debate and move on to vote. There are great many articles on the web in favor of and against this rule. 

If Democrats want any chance of making true of their campaign promises, they have to get ride of the filibuster rule as it stands today.  Or, else, the increasingly obstreperous opposition (that can be said for both Democrats and Republicans, to be fair) will use cloture rule as a weapon to bury Democratic agenda. 

Immigration, most inflammable agenda, is one that has been slaughtered most frequently on the alter of filibuster.  Recent memory recalls Dream Act of 2010 which failed to become law by 5 votes (including defection of 6 democrats - five voting "No" and one "intentional" abstention). 

However, there is one reliably opposing voice to ending the filibuster. It's not from Republicans. It's from this side of the aisle - that of Joe Manchin III's (D-WV). If recent interviews are any indication, Joe Manchin III is a vehement "No" for any change to existing filibuster rule. 

Therefore, unless a compromise rule that, let's say, allows 55 votes (and not 60 votes) to end filibuster is on the table and acceptable to Manchin III, hope to end filibuster as it stands today is slim to none (assuming Georgia Senators turn blue, of course). 

P.S. one "intentional" abstention from Democratic side during Dream Act vote was that of -- yes, you guessed it correctly - Joe Manchin III's.