DACA-fix looking unrealistic #DACA #Dreamers

The beat isn't positive, that's for sure. Mainstream media for the most part are acknowledging that DACA fix is one of the agenda items for Democrats, but reporters consider it as a "wish list" and something that is "not going to happen" because there is no "coordinated support for it." Senator John Thune (Number 2 in GOP Senate) also confirmed that a "DACA fix" isn't "going anywhere." Given the inflammable nature of the subject and less than 3 weeks to deal with, it was never a walk in the park. 

But the grave reality that DACA-fix is all but dead starting January 2023 when GOP takes the House with rejuvenated clout of the extreme right wing, seemed sufficient enough in the beginning for the hope to carry on. The elusive 10 Senate Republicans who hold all the power TODAY (to break filibuster in the Senate to pass legislation) will lose it all next year. Whether they vote for DACA or not, Kevin McCarthy (assuming he is the Speaker) isn't losing his speakership by putting a DACA bill on the floor. Next year, immigration is DOA (dead on arrival). 

Republicans know this. 

Democrats know this.

DACA Dreamers know this.

All hope mustn't be lost yet. Senator Durbin, while on the Senate floor yesterday, reiterated the urgency of a narrow bill for Dreamers (something Democrats have hesitated thus far) and also confirmed that he "is encouraged" by the conversations that are taking place. Activists for DACA have housed themselves in DC this week to convene with Democrats and Republicans in the Senate to "read the room" on DACA. 

Democrats need to focus on drafting a bill that can garner support of 10 GOP members (including 4-5 of those who are retiring and have no political fallout for supporting "amnesty"). 

This and next week will give us an accurate picture of where things are and where they are headed. 

For the DACA recipients, let's hope for the best (but prepare for the worst). 

 

DACA Dreamers face a Do-or-Die December

It is critical and, unfortunately, superbly difficult for Democrats to pass anything during lame duck session of 2022 for DACA dreamers. 

It is critical because Republicans take over the House in January 2023 with slim majority giving their hawkish Freedom caucus a massive sway in next Congress. It is not unimaginable to think that the GOP (especially the extreme faction of the party) House - the Jim Jordan House - is not going to let any "amnesty" be voted on in the next Congress even if DACA dreamers lose the battle in the high court and in turn their jobs, livelihood and means to live in the country. They just don't have the incentive to do it.

Between the-very-close then and now is December 2022 - the prime month of the lame duck session. As I have mentioned in my previous post, if Democrats can't close the deal in December of 2022, DACA dreamers face a doomsday scenario in next Congress. Citizenship for them will not be secured at least until the following Congress in 2025 (and that's assuming Democrats take the hold of Congress - which is highly unlikely). 

Even when the stakes for 800,000 DACA recipients couldn't be higher, it is going to be tough. In fact, next to impossible. Lame duck precedence is against DACA. Contentious legislation is usually avoided during this period as it is considered a transitional phase to the new congress and our political leaders start packing their bags for the Christmas holidays. 

Lame duck session is blink of an eye. Give or take, ongoing lame duck is around 2 weeks (10 days) of working calendar. Usually, congressional leaders need longer to just settle in their offices. Meeting with GOP colleagues, striking a deal, having a complete draft for a bill - that is way too much for this short period. Doable, but highly unlikely. 

GOP Senators are not incentivized to do anything for DACA during lame duck, other than goodwill and morality. And that doesn't bode well for DACA dreamers. The reality is that GOP senators who end up supporting an amnesty bill during lame duck (or anytime after that) will face an exceptional backlash from the extreme base of their party in Senate and especially the House in next Congress. Already the far-right news outlets and commentators have started hurling rocks and setting towns on fire at the whiff of some GOP senators just engaging in preliminary talks on this subject during lame duck. The names of those Senators have been placed on the "wanted" list. It is an uphill journey. Most of the GOP senators are ostensibly blaming the situation at the border for preventing them from signing off on any amnesty bill (knowing that DACA has nothing to do with border), it is really the backlash part that they are terrified of. Lindsey Graham, past proponent of Dreamers, at least admits it.

The only sliver of a light at the end of the tunnel is from the 4 out of 5 GOP senators who are retiring and have shown compassion towards DACA dreamers. Senator Blunt from Missouri, who enjoys great deal of goodwill with his Senate colleagues according to @PabloReports, is quite forthright in supporting DACA citizenship during lame duck for as long as the bill is limited to DACA. Given these senators are retiring and are immune from backlash, they may be more willing to support such an inflammable bill. The remaining 6 GOP senators would have to be those whose ability for reelection does not depend on the far-right flank of the party. They will have to step up and take this one. Again, where's the incentive? 

Really the only incentive for GOP senators is compassion. They, of all people, know their House colleagues better than anyone. They know the Jim Jordan House is the graveyard for immigration "amnesty" bill. It is this knowledge that may sway some surprising names in favor of DACA bill in December of 2022. 

Democrats have a massive role to play here which is another big problem for DACA. Historically, Democrats have used the term Dreamer quite broadly (covering as many as 4 million individuals) and tried to piggy back on DACA for amnesty for millions more. They will have to drop that strategy. GOP Senators are smarter. Democrats' job is to stick to amnesty for DACA recipients, no more no less. Keep it simple, clean, crisp, clear. Especially because it's really the livelihood of DACA that is on the line. Remaining undocumented population, albeit living by no means ideally in the country, will still continue their status quo. Democrats should try to find a bill around that which works for their GOP Senators. 

If anything comes to fruition for DACA, it will be attached to one of the year-end must-spending bills as an amendment. Some extreme Democratic House colleagues may try to use immigration to hijack must-spending bills but that won't work with Republicans. Bullying the opposition is not going to be the answer. A sober compromise is going to be. 

All of the above has to play out in December 2022. You do the math.

After lame duck session, Dreamers (DACA) don't stand a chance for years.

 It is important for the Democrats to realize that lame duck session is their only chance for getting pathway to citizenship passed for DACA recipients. If John Boehner could disallow vote on the bipartisan immigration bill back in 2013 that was passed by a veto-proof majority in the Senate, it is fair to say that Kevin McCarthy will most certainly follow that path come 2023. In the past 10 years, few would say that immigration debate has become less inflammable. 

More importantly, the 10 republicans, who stand between DACA recipients and a pathway to citizenship must acknowledge this fact. Their House colleagues are bound to reject any bill with a pathway to citizenship in 118th Congress, regardless of border security provisions tagged to it. John Boehner didn't care back in 2013 about the fact that Senate had thrown all the money it could on border security to appease their House colleagues. The poison pill was the pathway to citizenship. And if Republicans tried jamming an immigration restrictive bill with border security provisions without granting citizenship to some already within the country, Biden will veto it. 

So… the 10 Republicans, fateful 10, must know that any meaningful immigration bill - that helps them address border issues - must happen now during the lame duck. Even though some may say that lame duck is no time for major legislation. On the contrary, the lame duck session is especially for difficult but right bills to pass with little political fallout. 

A roller coaster named DACA (Deferred Action for Childhood Arrivals)

It took me 10 minutes to explain DACA to a life insurance agent, who'd been in the industry for over 20 years. "In my entire career I've never seen such a steep revision to initially quoted premiums." I paraphrased his remarks on the underwriter's decision to revise the quote for my monthly premiums for a million dollar, 30 year term life insurance from 67 to 248 bucks - a sweet 270% increase - based solely on my immigration status. "Does it matter for the underwriter to know that I have been in the United States for over 20 years and have never left the country once - not even for a brief trip." I told him as my final response. "It really matters on the card you have." He said. I could sense frustration with the decision and sympathy towards me. He knew the deal was off. 

This is what DACA is. It is a state of limbo that few understand. 

It is not a visa. It is not permanent residency. It is not citizenship. And also, it is not nothing.

Check out the immigration website for details but, at a high level, DACA is an executive policy that grants protection from deportation and, more importantly, work permits to those who came to US as minors by June 15, 2007. You need to renew the grant every 2 years. Obama put it in place in 2012 for folks like us after years, if not decades, of failure of Congress to pass any immigration law - the only way to grant permanent residency or green cards.

From the get-go, DACA was on shaky grounds. Question of whether a President has the authority to grant work permits was being debated. DACA ended up in courts and eventually a district judge deemed it as unlawful and stopped new enrollments but kept renewals in place. 

Now, fifth circuit has claimed it unlawful and for some weird reason continued to maintain status quo - i.e. no new DACA approvals, only renewals. Though the decision will be appealed and make its way to the supreme court for the second time (first time was about its implementation), and if, against all odds, supreme court sides with DACA (which it won't), there is the specter of a future President reversing the policy, easily.

In other words, DACA isn't going to stay for long. 

As many times DACA has seen the faces of disgruntled judges as it has seen Congress (particularly, Democrats) conjure some solution that has failed to garner sufficient support for it to see the light of day.  

Congress has tried everything. Green cards for Dreamers, Registry Date revisions, comprehensive immigration reforms in many forms, citizenship for DACA in military, and so on. But where is the solution in the form of a bill that grants green cards to all "active DACA recipients and those who would qualify for it"... and that's it?

Big non-profits, bullhorns for undocumented folks at the steps of the Capitol, have so far come out to use DACA as a pulpit to drag the dead horse of massive immigration hauls, last of its kind being passed in 1986 - a different world. You see I can use a million dollar in donations received for the eradication of homelessness and use about 800Gs to pay myself an administrative fee, and still have the whole shindig being called as non-profit. These "non-profits" really don't want a solution. They want a fight to fight over in their board rooms. Solving the problem isn't incentivized. Trying to solve it, is. 

With cell phones and AR-15s, seems like common sense is also checked out prior to entering special sessions where Democrats discuss legislative priorities, especially immigration. In a political environment where DACA - arguably the lowest hanging fruit in the immigration fight - is making its way to the guillotine, some of the measures proposed by Schumer's party are simply put batsh*t crazy.

Either it's the citizenship for "Dreamers, TPS, and essential workers", with two of the three critical words being so flexible that even the proponents of the bills can't seem to agree on their definitions. Who is a Dreamer? It covers DACA recipients, plus some say who came to US prior to turning 18 even as recently as by December 2021 (see US Citizenship Act), others cap the entry criteria to 4 years prior to enactment of the law. Who is an essential worker? There is the classical, written definition, of essential workers - like agricultural workers, utility workers, doctors, fire fighters, etc. Then there is the abuse of that definition. You get me an affidavit stating that I have hung out on your farms, and I become an essential worker.

These days you hear a lot about registry date. That's another number. Registry is an existing congressional law where anyone who came to US prior to Jan 1, 1972 (read more here), is eligible for a shiny green card. Democrats would like to revisit this and not just propose an updated cutoff date, but make the whole thing a "moving registry". That is, if you came to US X number of years ago, you may get yourself a green card. 

What we have yet to hear is the vote on the original question - a bill to provide permanent residency for DACA recipients, and those qualify for DACA. Why is it then Democrats aren't putting forth this rather simple, straightforward bill up for a vote? They may say that they just don't have the support of Republicans. Well, let's let them vote against it, because being the party in power it is at least incumbent to bring to the floor a bill that is hard to vote against. 

Circling back to the key about DACA, that it is on its way out. The program has changed lives, around 800,000 of them. And not just any lives but of those who have spent decades of their formative years in the States, studying, working, "growing". Spending 15 years of your life, for example (minimum number of years a DACA recipient had to have been in the country as of 2022 to qualify), from age 6 to 21 plays different than for a person who has been here from age 50 to 65. DACA is now not just an immigration issue, it is a humanitarian issue.

What happens next? Well, Republicans will control the less forgiving and more reactionary chamber - the House, at least, in 118th Congress (starting Jan 2023). Any chance of a meaningful legislation for DACA will be quite slim from that point on. I hate to say it, but if DACA is headed for the guillotine next year and the Democrats are poised to lose absolute Congressional control, then the only real chance for permanent residency for DACA is during the lame duck, i.e. last two months of 2022.

Midterm elections '22 will decide, as always, the lame duck dynamic though. The most likely scenario (not by far, though) is that Democrats lose the House but keep the Senate. This is the best chance for DACA as well. The 10 Republican senators of current Congress have to know that the House in next congress will vote, let alone pass, jack on DACA. This may be the best chance for them to secure some common sense border control provisions and in return give the relief to DACA recipients, which some of the Republicans actually are sympathetic towards.

The second most plausible outcome in November '22 is that Democrats lose both chambers. This will be the worst for DACA. Since they would have revamped negotiation power come Jan 2023, Republicans would want to not do much on DACA during lame duck, especially also when DACA is still on a ventilator and not pronounced dead. Then, come 2023, Republicans aren't even going to talk on DACA until and unless Supreme Court declares it as unlawful and DACA recipients in thousands are losing their jobs. This inevitable decision will probably not make it to the fore till the end of next year, at least. That's another year lost and we are about to enter the crazy 2024, the presidential election year. The best case in this worst case scenario is that Republican Senators allow a vote on a narrow, rigid, bill that provides some protections to DACA recipients (DACA extensions as a congressional action without pathway to citizenship is not off the table also!). This is to gain support of some House republicans. And then Kevin McCarthy, House Speaker, will not allow a vote on any such bill (just like John Boehner did).

I won't write much about the other possible scenarios (D's keep House and lose Senate, or, D's keep Congressional control) because they are almost next to impossible to occur. In both scenarios, talks on DACA will lose steam and spill into 2023 and if they do, then again those will hinge upon Supreme Court. 

To cut long story short, if no action is taken on DACA in the last two months of 2022, then a pathway to citizenship for DACA recipients is exceptionally unlikely under Biden administration, regardless of Supreme Court's decision. Democrats, please, please, get to work. 

Why the "Plan B" of the Democrats to pass immigration through budget reconciliation will FAIL.

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.)

Understanding the Parliamentarian's ruling on Immigration in Budget Reconciliation

"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.)

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/