Dems Search For Path To Immigration Reform After Parliamentarian Ruling

MacDonough’s ruling against Democrats' efforts to include a massive immigration reform effort in their $3.5 trillion proposed sp
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Schoolhouse Rock, while providing us with the unforgettable earworm “I’m Only a Bill,” sadly offers no content on the Senate Parliamentarian. In fact, until this week’s critically important immigration decision of current Senate parliamentarian, Elizabeth MacDonough, few of us knew that this position existed.

The current Parliamentarian, Elizabeth MacDonough, was named to that position in 2012. There have only been six Senate Parliamentarians since the position was created in 1935. Article I, Section 5, of the Constitution, allows the creation of this position by stating that “Each House may determine the Rules of its Proceedings” and that “Each House shall keep a Journal of its Proceedings.”

MacDonough’s ruling against Democrats' efforts to include a massive immigration reform effort in their $3.5 trillion proposed spending bill is a huge setback to immigration reform. The Democrats argued in front of MacDonough on September 10th that since it would increase the budget deficit by $139 billion to create this pathway to citizenship for 8 million immigrants, it made procedural and legal sense for it to be included in the reconciliation process, which is solely reserved for budgetary legislation

Another practical reason why Democrats sought this path for immigration reform is because this can be done with a simple majority, which gets them around the omnipresent filibuster by the Republicans. With the 50:50 Senate we currently have, the Senate cloture rule requiring 60 members to end debate on most topics and move to a vote is the main reason why immigration reform has yet to move forward in this era of virulent partisan polarization in the Senate.

Adriana Gonzalez, a South Florida lawyer who has represented many individuals in civil rights and immigration cases, sees the impact of the immigration issue on a daily basis in her practice.

“It is absolutely unfair and fundamentally undemocratic for so many people legally in the United States to be once again deprived of a clear and expedient path to citizenship. If there was ever an issue that needed bipartisan agreement, this is it.”

Yet absent anything even resembling bipartisanship, we are left this week with the substance of MacDonough’s decision, which in itself is perplexing. While arguing that “The reasons that people risk their lives to come to this country – to escape religious and political persecution, famine, war, unspeakable violence and lack of opportunity in their home countries – cannot be measured in federal dollars,” she concedes that “existing barriers to adjustment of status to that of lawful permanent resident (LPR) for a variety of existing and newly created classes of immigrants and non-immigrants, including many not legally present in the United States, is a policy change that substantially outweighs the budgetary impact of that change.”

In other words, yes, the Senate Parliamentarian is pretty much fully onboard with the Democrats’ motivation and rationale for immigration reform, and she realizes that given any realpolitik analysis of where we are with immigration reform today would lead to the immediate path argued by the Democrats - yet the ruling went against their efforts to include this in the spending bill. This is a fine example of why politics frustrates so many people who don’t work in or around it - it often seems that relatively easy fixes for problems that have become historically complex are passed over not only in favor of something much more difficult, but that might never actually happen.

The most compelling reason in MacDonough’s decision not to include this measure in the reconciliation process is the impermanent procedural nature of doing so:

“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.”

Just because the Senate Parliamentarian says something, it doesn’t absolutely have to be followed. In a very heated and politically complex moment back in 1975, Vice President Nelson Rockefeller ignored advice from Senate Parliamentarian Floyd Riddick about the proper procedure for handling a vote about changing the Senate’s filibuster rules.

But this isn’t happening this week, so Democrats need a new and actually viable strategy as to how to move immigration reform forward now. While the clock always seems to be ticking on immigration issues, it really is at the moment. We are very close to one year from the 2022 midterms, and with uncertainty looming not only as to the result but fears about the process itself, the clearest path on the horizon for immigration reform is now.

Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital and the Editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in CBS News, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Yahoo!, ABA Journal, Law.com, The Boston Globe, and many other leading publications.

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