Post-court ruling, Democrats face pressure to deliver on immigration 

Democrats are under growing pressure to pass long-stalled immigration reform after a federal judge poured new fuel onto the years-long fight by blocking new Deferred Action for Childhood Arrivals (DACA) applicants. 

With bipartisan talks making little progress, Democrats are poised to use what was viewed as their back-up plan: trying to get immigration reform passed as part of a sweeping spending package that they will pass via reconciliation, which allows them to bypass the Senate's 60-vote filibuster.

Democrats are still sorting out the details but want to get a pathway to citizenship for at least “Dreamers” into their $3.5 trillion bill that they are likely to try to pass this fall. 

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“Congress cannot wait any longer ... Senate Democrats need to provide a permanent legislation for the dreamers. We need to act swiftly,” said Sen. Dick Durbin (D-Ill.). 

Asked if a Democratic-only bill would only address DACA, Durbin added separately to reporters: “I hope it goes bigger.”

The go-it-alone effort comes as hopes of passing immigration reform have stalled out in Congress after months of behind-the-scenes talks. 

The House passed legislation earlier this year to provide a pathway to citizenship for “Dreamers,” immigrants brought into the country illegally as children. 

But that’s gone nowhere in the Senate as Durbin has been leading bipartisan negotiations that have been slow going. 

“I’m always open to bipartisan talks and maybe there will be some movement after this Texas decision, but it has not been encouraging,” Durbin said. 

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Biden also proposed a sweeping plan that would create a pathway to citizenship for 11 million undocumented immigrants. But that plan hasn’t passed the House, and top Democrats have acknowledged that it stands no chance in the Senate, where at least 10 GOP votes are required to pass most legislation. 

To get immigration passed as part of Democrats’ infrastructure bill, they would need the support of all 50 members of their Senate caucus and near unity in the House. Democrats will use reconciliation, a budget process that allows them to bypass the Senate’s 60-vote filibuster, to pass a roughly $3.5 trillion bill that will include broad swaths of Biden’s families and jobs plans. 

No Democrat had drawn a hard line against including immigration-related provisions, though they’ve yet to start digging into the specifics of their forthcoming bill.

In a boon for Democratic hopes, Sen. Joe Manchin (D-W.Va.), one of the party’s biggest wildcards in Congress, told reporters that he was “fine” with including immigration. 

“I'm a 2013 immigration supporter. You can look at the 2013 bill and I thought that was a great bill. If we had that bill then, we wouldn’t have the problems we'd have today,” he said, referring to a comprehensive immigration reform bill that passed the Senate in 2013 but was never taken up by the House.

To include immigration provisions in the reconciliation package, Democrats also would also need the blessing of the Senate parliamentarian, who greenlights what does, or does not, comply with the rules for the procedure. 

Senate Majority Leader Charles Schumer (D-N.Y.) told House Democrats earlier this year that he was “actively exploring” if immigration could be done through reconciliation. 

And Democrats are hopeful that they will get Senate Parliamentarian Elizabeth MacDonough, a former immigration lawyer, to rule in their favor. They point to the Senate previously addressing H-1B visas through reconciliation, a move that got GOP support at the time 

But MacDonough has rankled both parties, warning in 2017 that a GOP health care plan didn’t comply with reconciliation rules and weighing in against Democrats’ ability to include a $15 per hour minimum wage in their coronavirus legislation earlier this year. 

Durbin indicated that Democrats hadn’t gotten initial guidance yet from the parliamentarian.

Some Democrats have drawn hard lines that immigration has to be included in the final infrastructure package in order to get their vote. But Rep. John Yarmuth (D-Ky.) has questioned how much Democrats could really get in a package given the Senate rules.

Progressives are already urging Democrats to overrule the parliamentarian or fire her if her guidance is that their immigration proposals don’t comply with immigration. 

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Senate Democrats are unlikely to override the parliamentarian, and President Biden, on Monday, indicated that they would leave it up to her.

“I think we need to find pathways to citizenship. Budget bill is an appropriate way to get around the filibuster to be able to make a judgment as to whether or not there should be a pathway. That's for the parliamentarian to decide, not for Joe Biden to decide,” Biden said.

They are also likely to face a fight from Republicans, who could make their own case to MacDonough, on including immigration reform in the party-line infrastructure package. 

Sen. John Cornyn (R-Texas) predicted that Senate Democrats will be able to get “a whole lot less than they think.”

“I think they’re making a big mistake by promising that they will be able to do a lot of things that they won’t be able to deliver on,” Cornyn said.