Democrats and immigration advocates are ready to pitch a Plan B after the Senate parliamentarian spiked a Democratic proposal aimed at providing a pathway to citizenship for millions of people.
Senate Parliamentarian Elizabeth MacDonough, a former immigration lawyer, shut down the possibility of granting 8 million people the right to apply for legal permanent residency, determining in a Sunday opinion that it did not meet the Senate’s rules for the budget reconciliation package because it was a policy change that went well beyond the budget.
The decision is critical because under Senate rules the filibuster cannot be used to block a reconciliation package, meaning policy changes included in the massive package can become law if Democrats can secure 50 votes from their own caucus in the Senate.
While MacDonough’s ruling nixes the possibility of an easy legalization process for specific subgroups of immigrants, advocates are confident their backup pitches will sway MacDonough.
“She gave her view on only one approach on including a pathway to citizenship in reconciliation, and it is my expectation that my colleagues and I will be going back to the parliamentarian with other options in the coming days,” Sen. Bob MenendezRobert (Bob) MenendezFive ways Senate could change Biden's spending plan Spending bill faces Senate scramble Republicans raise concerns over Biden's nominee for ambassador to Germany MORE (D-N.J.) said Monday on a call with reporters.
At the top of the list is a congressional mandate for the executive to change the registry date for certain undocumented immigrants and beneficiaries of humanitarian parole programs, essentially implementing a statute of limitations for past unauthorized entries.
That method of legalization has the benefit of having been successfully implemented in the past, and it wouldn’t require changing the law. Instead, it would just update a cutoff date.
“I personally prefer trying to get the parliamentarian to agree to a registry date change because we’re not changing the law, which was the essence of her argument that I read in her opinion,” said Menendez.
According to an analysis by FWD.us, changing the registry date to 2010 — allowing any migrants who’ve been in the country since that date to apply for residency — would make around 6.7 million people eligible for legal permanent residency.
One reason the registry approach was not Plan A is it grants benefits to people based on how long they’ve been in the United States, rather than the subgroup of immigrants they belong to, which could mean more recently arrived “Dreamers,” Temporary Protected Status beneficiaries and essential workers could be left out of status.
“The registration date should be at a minimum of 2015, ideally I would say 2020, and particularly with essential workers that have been keeping our country afloat. We’re talking about not just farm workers but the people that are helping to rebuild right now in Louisiana after Hurricane Ida, the health care workers, the educators,” said Marielena Hincapié, executive director of the National Immigration Law Center.
Another option would be a similar change to a provision of the Immigration and Nationality Act known as 245(i), which allows a family member to petition to adjust the status of a relative.
“The fact that registry is a law that Congress already passed, that is already on the books as well as 245(i) — arguably that is a much simpler change. We’re talking literally about a matter of a few words in statue, changing the dates of those provisions versus the package put forth to the parliamentarian last time was 17 pages legislative text,” said Greg Chen with the American Immigration Lawyers Association.
“It’s just a much simpler legislative change and arguably a much smaller impact on what’s already in the law.”
Still, some are confused just how much headway such proposals will make with MacDonough, as her ruling presented a wide range of arguments.
Advocates were deeply critical of MacDonough’s document, which they say didn’t really answer the points made by Democrats in their pitch.
“She’s having a different, almost like a different conversation, and instead it reads much more like a political ruling, rather than really on the merits, if this were a court decision,” said Hincapié.
Some were hoping for more of a window into how MacDonough determined the immigration policy didn’t have enough of a fiscal element on the budget to qualify for the reconciliation measure.
“Having said that the policy change substantially outweighs the budgetary impact of that change, she never makes clear how she evaluated the magnitude of the policy impact — whether it was based on the sheer number of people who stand to benefit or on the policies that are changed. Her ruling really fails to explain how she reached that fundamental conclusion,” Chen said.
But activists were encouraged by Senate Democrats’ quick response to the ruling, as top leaders including Majority Leader Charles Schumer (D-N.Y.) and Majority Whip Dick DurbinDick DurbinFour questions that deserve answers at the Guantanamo oversight hearing Senate dodges initial December crisis with last-minute deal Conservatives target Biden pick for New York district court MORE (D-Ill.) came out to say MacDonough’s decision is not the end for the immigration debate.
“I think Schumer and Durbin coming out right out of the gate very early and making very clear that they have alternative options, that they’re going to pursue those alternative options, is a very, very good sign,” said Jessica Morales Rocketto, executive director of Care in Action, an advocacy group for domestic workers’ rights.
Still, there’s a tension between Senate Democrats and progressives, who see MacDonough’s reversal as an opportunity to once again call for reforming Senate rules.
“This ruling by the parliamentarian, is only a recommendation. @SenSchumer and the @WhiteHouse can and should ignore it. We can’t miss this once in a lifetime opportunity to do the right thing,” tweeted Rep. Ilhan OmarIlhan OmarPressure grows to remove Boebert from committees Omar calls McCarthy 'a liar and a coward' for reaction to Boebert comments Kevin McCarthy is hostage to the GOP's 'exotic wing' MORE (D-Minn.).
While Menendez said he “understands [activists’] view and their passion” on the possibility of dismissing or ignoring MacDonough, he said “the parliamentarian under the Senate rules is the final word of what is and is not permitted under the rules.”
That rift could extend to the alliance between Senate Democrats and immigration advocates if Plan B fails to sway MacDonough.
“I want to be really clear. Nobody, nobody gets to hide behind [MacDonough],” said Lorella Praeli, co-president of Community Change Action.
“This year, there are no brownie points for trying. There are no participation trophies.”