AMAC Exclusive by Shane Harris
Early last week, conservatives celebrated a huge victory in the fight over President Biden’s signature blowout spending plan, the so-called “Build Back Better Act” (BBB), when West Virginia Democrat Joe Manchin announced that he would not support the bill in its current form. But while Manchin’s announcement dominated the news coverage of BBB, Democrats received another less reported on but similarly destructive blow to their agenda when Senate Parliamentarian Elizabeth MacDonough announced last week – for the third time – that immigration provisions in the legislation did not have a significant enough fiscal impact to be included in the bill under budget reconciliation guidelines.
Now, Democrats are scrambling to address both of these major threats to their agenda and pass something as the midterm elections rapidly approach. Even if they can flip Joe Manchin, however, this latest in a string of defeats on the progressive push for mass amnesty suggests that Joe Biden and his allies in Congress may be facing an increasingly uphill battle.
Much of Democrats’ trouble stems from guidelines surrounding the budget reconciliation process they are using to try to pass Biden’s spending plan. Under Senate rules, most legislation must have the support of at least 60 senators for it to be considered. Otherwise, the minority party can filibuster any bill and effectively “kill” it.
One of the few exceptions are bills considered using the budget reconciliation process, which allows spending legislation to pass with the support of just 51 senators.
However, avoiding the 60-vote threshold comes at a cost. According to a decades-old precedent known as the “Byrd Rule” (named after late West Virginia Senator Robert Byrd), every part of any legislation passed under the budget reconciliation process must be related to spending or taxes.
The Senate Parliamentarian – a nonpartisan advisor who ensures legislation and Senate proceedings align with Senate rules – is the person charged with deciding which provisions in budget reconciliation bills do and do not meet the requirements of the Byrd Rule. In the case of Biden’s spending plan, MacDonough, who has been the Senate Parliamentarian since 2012, has ruled that immigration provisions as well as several other major Democrat initiatives contained in the bill do not meet those requirements.
McDonough shot down Democrats’ first attempt at including immigration reform in the bill in late September, ruling that “the policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation.” Under that initial plan, Democrats would’ve simply given out eight million green cards to illegal immigrants, without any plan for vetting recipients or securing the border to stem the ongoing flood of illegal crossings. Clearly, this proposal had little to do with the federal budget or fiscal policy.
However, Schumer was quick to respond that Democrats had other language ready – suggesting that they may have known from the beginning that their plan did not meet the requirements of the Byrd Rule.
Within days, Democrats had submitted “Plan B” to the parliamentarian’s office. Their second effort made use of a decades-old immigration law which allows illegal immigrants who have lived in the United States since 1972 to receive lawful permanent resident status. Plan B would have moved up the date from 1972 – in effect, again granting mass amnesty for illegal immigrants with no plan for how to secure the border.
Unsurprisingly to everyone except apparently Senate Democrats, MacDonough again rejected the plan, calling it a “weighty policy change,” the effect of which “vastly outweighs its budgetary impact.”
Irrespective of the repeated clear message from the parliamentarian’s office, Democrats included “Plan C” immigration language in the version of BBB passed by the House in November. This time, they hoped to use “parole in place” authorities to grant five-year work permits and relief from deportation to 6.5 million illegal immigrants – in other words, more mass amnesty.
MacDonough was again unequivocal in her reasoning for rejecting this latest iteration of Democrats’ attempt at massive immigration overhaul: “The proposed parole policy is not much different in its effect than the previous proposals we have considered… These are substantial policy changes with lasting effects just like those we previously considered and outweigh the budgetary impact.”
After this latest rejection, Democrats’ hopes of using the budget reconciliation process as a vehicle to overhaul the American immigration system appear to be on life support. But that doesn’t mean that radical open borders advocates in Congress are ready to admit defeat just yet.
Following MacDonough’s decision, Schumer and a host of other Senate Democrats released a joint statement slamming the ruling and promising to “pursue every means to achieve a path to citizenship in the Build Back Better Act.” Massachusetts Democrat Elizabeth Warren, who has long been one of the most progressive members of the Senate, said that “the parliamentarian was wrong, as a matter of law.” Hawaii Democrat Mazie Hirono was even more incredulous, tweeting that “the protection of millions of undocumented immigrants cannot be halted due to the advice of 1 person.” (It should be noted that MacDonough, the “1 person” Hirono referred to, has a demonstrated history of calling balls and strikes fairly for both sides. Not too long ago she was the subject of much Republican ire for similarly rejecting GOP efforts to repeal large sections of Obamacare using the budget reconciliation process.)
While some reports have suggested that, despite being shot down three times, Senate Democrats are nonetheless pursuing a “plan d” under the same general framework, Majority Whip Dick Durbin (D-Ill.) has denied the claim.
That leaves Democrats with fewer and fewer options to enact their extreme immigration agenda – all of which would involve breaking decades of precedent. Democrats could, for example, simply vote to overrule the parliamentarian, which would only require 51 votes. However, while progressives in the House and Senate, as well as outside immigration groups, have openly called for such a move, it would require the support of moderates Joe Manchin and Kyrsten Sinema, and would likely further underscore the radicalism of the Democratic Party in the eyes of the public – something the party can ill-afford heading into the midterm year.
Democrats could also simply replace MacDonough with a new parliamentarian who would rule in their favor. This strategy carries with it some risks as well, as Republicans would undoubtedly replace whoever Democrats install with their own parliamentarian once they retake the Senate, thus violating the political neutrality of the position, gutting the Byrd Rule, and effectively abolishing the filibuster.
Without the support of Joe Manchin, and with Democrat infighting continuing to divide the party, much of Biden’s agenda appears increasingly doomed. However, even if Democrats can manage to unite on policy, it looks as if it will take an even more radical lurch to the left to overcome procedural protections put in place to deter extreme policymaking – something that will likely on further endanger Democrats’ razor-slim majorities heading into the midterms next November.