How the Senate Parliamentarian Can Get to ‘Yes’ on Immigration

Charles Kamasaki
7 min readSep 30, 2021

Experts have noted the increasingly significant role played by the Senate Parliamentarian on the fate of critical legislation.[ii] This was never more in evidence when on September 19 and again 10 days later the Parliamentarian declined[iii] to bless inclusion of an immigration proposal on a pending budget reconciliation bill. A more accurate understanding of the substance and faithful adherence to past precedent should’ve led the Parliamentarian to the opposite conclusion.

Democrats first sought to offer a pathway to lawful permanent residence via reconciliation legislation to some 8 million people, including DREAMers and Temporary Protected Status recipients in the US lawfully, and mostly undocumented agricultural and other workers defined as “essential” by the Trump administration during the pandemic. A subsequent proposal sought to update the “registry” date, sort of a statute or limitations for unauthorized entry. The estimated budget impact of both proposals was about $140 billion.

At issue is the so-called “Byrd Rule,” named after the late senator, which states that to be eligible for reconciliation, the proposal must produce “a significant budgetary impact” that is not “merely incidental” to its “non-budgetary components.” Since a $140 billion budgetary impact is undeniably significant, the question is whether it’s outweighed by the proposed policy changes. In concluding that the Democrats’ proposals don’t meet this test, the Parliamentarian’s opinion makes factual errors, selectively applies precedents, and offers dubious assertions outside her jurisdiction.

Since so much of the Byrd Rule rides on precedent, let’s examine the five previous times immigration proposals have been included in reconciliation bills without being overruled by the Senate Parliamentarian.

  • In 1990 Congress enacted reconciliation legislation that included an “amnesty” for certain immigrants for past misuse of Social Security numbers, a provision benefitting some 3 million undocumented people legalized by the 1986 Immigration Reform and Control Act.[iv] This law allowed previously undocumented people who’d used fake IDs to claim past contributions without fear of prosecution for that offense. Since unclaimed earnings are held in the Social Security Trust Fund’s “suspense account,”[v] the provision’s budgetary impact was negligible.
  • In two instances, the massive welfare reform in 1996, and a related bill in 1997, Congress made significant policy changes to the ability of immigrants — and in some cases their US citizen family members — to avoid economic deprivation. The 1996 welfare reform made nearly 20 million legal immigrants ineligible for virtually all public benefits and eliminated what few benefits that undocumented immigrants could access. The budget impact for these measures was almost $24 billion over 5 years.[vi] The 1997 Balanced Budget Act reconciliation bill partially restored some benefits to about 500,000 legal immigrants, at a cost of $11.5 billion over 5 years.
  • In 2005, the Senate-passed version of reconciliation included green cards for an additional 3.5 million people. Allowing millions of people access to lawful permanent residence didn’t trigger Byrd Rule concerns then, although the provision was later removed in Conference Committee.[vii]
  • In 2017 the GOP-controlled Congress enacted major tax legislation via reconciliation that made about one million undocumented children ineligible for the Child Tax Credit, with a $3.48 billion budgetary impact.[viii]

Let’s examine the Parliamentarian’s rationale for rejecting the most recent immigration proposals. In distinguishing these past precedents from the current proposals the Parliamentarian makes a series of factually incorrect statements.

  • She asserts that those affected by the 1990 provision “were already in status.” But she ignores the fact that the 1986 legalization was a “two stage” process, whereby most applicants received temporary status initially but had to apply a second time to achieve permanent residence. More than a million immigrants had not completed this second stage by 1990.[ix]
  • Eligibility for permanent residence required applicants not to have committed certain crimes; but for the amnesty for social security number violations, many might not have successfully completed the second stage. If legalizing 1 million people with essentially zero net budget impact met the Byrd Rule test in 1990, it’s hard to see how legalizing 8 million people with a budget impact of $140 billion doesn’t today.
  • Regarding the 1996 welfare reform and the 1997 bill, the Parliamentarian correctly notes that these applied not to legal status but to eligibility for benefits. But in diminishing the policy impact of these changes, she errs badly. The 1996 reconciliation disqualified all lawfully present immigrants from benefits to which they were entitled for the first time in American history — with greater policy significance than mere dollars saved.

For most immigrants, as with most Americans, the safety net was something to be accessed only occasionally, typically following a divorce or death of a bread-winning spouse, job layoff or medical illness. Even the relatively affluent are potentially one or two lost paychecks away from having to access the safety net to prevent falling into poverty. After 1996, the 20 million lawfully present immigrants at the time — and the millions more to come — were one unpredictable incident away from economic destitution.

But for some, like Laotians who’d assisted the US during the Vietnam War by rescuing downed American fighter pilots and later came to the US as refugees, their benefits were a lifeline; many committed suicide when their only source of income was cut.[x] One longtime elderly legal immigrant, 75 year-old Ignacio Munoz, shot himself when he learned he would lose his $440/month disability check.[xi] For these legal immigrants, access to public benefits was nothing less than a matter of life and death.

  • The 1996 bill also eliminated undocumented families’ eligibility for the few programs they could access. For the nearly six million US citizen children whose households have been denied access to the Earned Income Tax Credit because they reside with an undocumented parent,[xii] the legacy of the 1996 reconciliation in terms of thousands of dollars of lost income annually has been profound. Certainly, the millions of citizen kids relegated to a life of poverty[xiii] because their working parents are denied the EITC would find that bill’s impact far more than “merely incidental.” If the 1996 policy changes with consequential effects to millions and a $24 billion budget impact, met the Byrd Rule test, so should the Democrats current proposals.
  • The Parliamentarian dismisses the 2005 precedent by noting that the 3.5 million additional green cards provided in that bill would have gone to people “already admissible and not barred” from applying for status. But this misses the point in two ways. The fact that people are theoretically admissible is irrelevant if green cards aren’t actually available to them, as the millions of immigrants now facing years or even decades of visa backlogs can attest. Moreover, many of those covered by the Democrats’ proposal, such as the portion of the undocumented population made up of visa overstayers, aren’t barred from applying for status, there simply aren’t enough visas available.[xiv] In making visas available to those without access to them, the Democrats’ current proposals have far more in common with this past precedent than not.

The Parliamentarian also strays far from her technical jurisdiction by opining that some past immigration-related reconciliation provisions — including many with significant policy impact and minimal budget effects and thus questionable adherence to the Byrd Rule — were kosher because they enjoyed bipartisan support. Notably, she failed to apply this standard to the 2017 reconciliation bill, which disqualified a million kids from the Child Tax Credit at the cost of a mere $3.48 billion dollars, that passed on a strict party-line vote.[xv] The DREAM Act and farmworker legalization legislation have passed the House twice with bipartisan support, and a proposal to legalize DREAMers and other undocumented immigrants garnered eight GOP votes in the Senate as recently as 2018.[xvi]

In sum, the Senate has passed immigration-related provisions on at least five previous reconciliation bills. Several affected many more people than the 8 million that Democrats propose to legalize, at far lower cost. One provided new visas to those without access to them. Another even provided an amnesty for past offenses, thus allowing a million people to obtain permanent residence. A fair reading of these past precedents should’ve allowed the current proposals to be included in reconciliation.

In the coming days the Democrats will proffer other proposals with less expansive policy changes. If instead of applying hypercritical, often inaccurate and inconsistent standards to them, the Parliamentarian fairly applies past precedent, she can easily get to “yes” to including immigration provisions in reconciliation legislation. If she doesn’t, Senate leaders should disregard her non-binding advice, thereby transforming the lives of millions.

[i] Charles Kamasaki is Senior Cabinet Advisor at UnidosUS, Fellow at the Migration Policy Institute and author of Immigration Reform: The Corpse That Will Not Die (Mandel-Vilar Press 2019). The views herein are his own.

[ii] The History of Congressional Parliamentarians and Why They Matter (governing.com)

[iii] See: https://twitter.com/seungminkim/status/1439743618424659973.

[iv] H.R.5835–101st Congress (1989–1990): Omnibus Budget Reconciliation Act of 1990 | Congress.gov | Library of Congress

[v] https://www.nytimes.com/2005/04/05/business/illegal-immigrants-are-bolstering-social-security-with-billions.html

[vi] 1996doc32.pdf (cbo.gov)

[vii] https://www.americanprogress.org/issues/immigration/news/2021/07/01/501212/pathway-citizenship-economic-growth-budget-reconciliation/

[viii] Inclusive Child Tax Credit Reform Would Restore Benefit to 1 Million Young ‘Dreamers’ — ITEP

[ix] https://www.migrationpolicy.org/sites/default/files/publications/legalization-historical.pdf

[x] Many Laotians in U.S. Find Their Hopes Betrayed — The New York Times (nytimes.com)

[xi] https://www.washingtonpost.com/archive/politics/1997/07/01/noncitizen-immigrants-retain-aid-in-budget-bills/4c91f5c9-f38f-4810-8ae1-7e1858a0a34f/

[xii] https://cmsny.org/publications/mass-deportations-impoverish-us-families-create-immense-costs/.

[xiii] https://cmsny.org/publications/jmhs-suro-findling-090221/

[xiv] https://cmsny.org/publications/essay-2017-undocumented-and-overstays/.

[xv]https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&session=1&vote=00323

[xvi] Senate immigration vote count: How close a DACA deal is to passing — Vox

--

--

Charles Kamasaki

Charles currently serves as Senior Cabinet Advisor, UnidosUS and is a Fellow at the Migration Policy Institute.