Democrats’ hopes of including a path to citizenship for the 8 million undocumented immigrants currently living in the US in their upcoming budget reconciliation bill were dashed by a ruling from the Senate parliamentarian. It’s certainly a setback, given that reconciliation looked like their best chance to pass immigration reform this year, but it doesn’t mean that immigration reform has reached a dead end.
Democrats have several immediate options, including presenting the parliamentarian with alternative proposals, overruling the parliamentarian, or resuming bipartisan negotiations on narrow immigration policies that at least some Republicans might find palatable.
But while any one of those paths could yield urgent protections for at least some groups of immigrants, none presents the opportunity to meaningfully modernize the US’s broken immigration system to meet America’s changing demographic and economic needs. In the long run, Democrats will likely need to build consensus around immigration issues beyond their own ranks and pass broader legislation with Republican support.
Yet Congress is a long way from 2013, the last time a comprehensive immigration reform package drew significant bipartisan interest. And since that time, former President Donald Trump has made immigration a political wedge, giving new power to the anti-immigrant wing of his party.
There is still appetite among some Republicans to legalize certain populations of immigrants, such as farmworkers and undocumented young people who arrived in the US as children. Without Trump in office, these Republicans might be less wary of striking a deal with Democrats. But both immediate and long-term change may require Democrats to make compelling arguments to the other side, something they have not yet done.
The parliamentarian’s ruling, explained
Senate parliamentarian Elizabeth MacDonough, an unelected staff attorney, is charged with interpreting the chamber’s rules, and that includes determining what legislation can and cannot be passed via budget reconciliation, a process that requires a simple majority vote and is not subject to the filibuster. Any element of a reconciliation proposal must have a “more than incidental” impact on the federal budget to pass muster.
Democrats had hoped to provide a path to citizenship to several key groups through reconciliation: undocumented “DREAMers” who came to the US as children; people with Temporary Protected Status, a form of humanitarian protection typically conferred on citizens of countries suffering from natural disasters, armed conflict, or other extraordinary circumstances; farmworkers; and other essential workers.
Democrats had argued that precedent was on their side. In 2005, the then-Republican-controlled Senate passed its own reconciliation bill including several immigration provisions that would have effectively increased the number of green cards issued annually. Though the provisions didn’t make it into the final version of the bill that was passed by the House, it would have allowed any unused green cards under the annual caps set by Congress to be issued the following year, as well as excluded the family members of foreign workers from counting toward the caps.
Democrats also argued that their immigration provisions had direct budget impacts: Just providing DREAMers, TPS holders, and undocumented essential workers with a path to citizenship would increase GDP by a cumulative total of $1.5 trillion over 10 years and create 400,800 new jobs, not even accounting for the potential economic windfall for those immigrants’ children, according to estimates from the Center for American Progress. The same analysis notes that after 10 years, those workers would see their annual wages increase by $13,500, and all Americans would see higher wages by an annual $600.
MacDonough, however, found that the impact of the legislation far outweighed its budgetary consequences, making it inappropriate to include in a reconciliation bill.
“It is by any standard a broad, new immigration policy,” she wrote in her Sunday decision. “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 also asserted that, if she were to allow Democrats to pass the measure through reconciliation, that might be used as a precedent to justify revoking any immigrants’ legal status in future reconciliation bills.
Despite calls to overrule — or even fire — the parliamentarian, Democrats have made it clear they plan to abide by her ruling: “The parliamentarian is the final word of what is and not permitted under the rules,” Democratic Sen. Bob Menendez said in a press call on Monday.
But all hope of reform isn’t lost. Democrats still have viable alternative strategies they can try.
The more limited reforms Democrats may be able to put in a reconciliation package
Democrats are planning to field alternative immigration proposals before the parliamentarian in the hopes of inclusion in their reconciliation bill.
One proposal is to update the “immigration registry.” Under the registry, if an immigrant has been living in the US since before a certain date, they are eligible to apply for permanent residence under federal law, regardless of whether they overstayed a visa or entered the US without authorization. But that date hasn’t been updated in decades. It’s currently January 1, 1972.
The pool of people eligible to apply for permanent residence through the registry has therefore dwindled over the years, with only 305 able to get permanent status between 2015 and 2019. But Democrats are considering advancing that date, potentially allowing millions of undocumented immigrants to attain legal status. If the date were set to 2010, some 6.7 million people would become eligible. Immigrant advocates have argued that it should be set to 2015 or earlier to ensure that DREAMers and essential workers who arrived more recently would be covered.
Another option would be to set a “rolling” cutoff date that automatically adjusts, perhaps advancing by one year annually or creating an eligibility standard requiring a certain number of years of continuously residing in the US.
Democrats could also propose a similar change to an existing law known as Section 245(i) of the Immigration and Nationality Act that allows a family member or employer to apply for a green card on behalf of an undocumented immigrant. It’s essentially obsolete at this point because only applications filed before April 30, 2001, were accepted. But Democrats could advance that date. Given that more than 8 million US citizens have at least one undocumented family member living with them, that small date change could have big implications.
The Senate parliamentarian could reject these alternatives for the reconciliation bill, but Democrats believe she might be open to such proposals.
“We’re not changing the law. We’re just updating a date. There’s a dramatic difference,” Menendez said.
As the Senate did in 2005, Democrats could push for a provision that would allow the US to “recapture” previously unused green cards, which would go a long way toward helping applicants stuck in sometimes years-long backlogs. Hundreds of thousands of green cards allocated by Congress have gone to waste due to processing delays since 1992, and the pandemic has only worsened those delays. At this point, it seems like about 250,000 green cards — a record level — will go unused in 2021.
The parliamentarian hasn’t reviewed that proposal yet, given that Democrats’ first priority is pursuing a legalization program in some form, Kerri Talbot, the deputy director of the advocacy group Immigration Hub, said in a press call. But recapturing cards would be a boon to immigrants already residing in the US on other visas, as well as to future immigrants applying from abroad.
Republicans could be open to narrower legislation to legalize certain immigrants
If reconciliation proves to be an impossible vehicle for Democrats’ immigration reform ambitions, they might consider going back to the negotiating table with Republicans.
Bipartisan talks on immigration reform — led by Republican Sens. Lindsey Graham and John Cornyn and Democratic Sens. Dick Durbin and Menendez — hit a wall in May after Republicans said they wouldn’t move forward unless Biden started implementing stricter control over the southern border. In reality, Biden has been tough on the border, maintaining some Trump-era policies over the objections of immigrant advocates. Republicans have nevertheless sought to paint him as an “open borders” Democrat, perhaps foreshadowing a line of attack in next year’s midterm elections.
But there have previously been glimmers of potential common ground — glimmers strong enough to be promising.
In March, the House passed two bipartisan immigration bills to legalize DREAMers and other humanitarian protectees, as well as farmworkers. Nine Republicans joined Democrats to pass the Dream and Promise Act by a vote of 228-197. The Farm Workforce Modernization Act also passed 247-174, backed by 30 Republicans. The bills narrowly addressed immigrant populations perceived as sympathetic by at least some members of both parties.
In April, Cornyn and Sen. Kyrsten Sinema, a Democrat from Arizona, introduced a bipartisan bill to revamp the way that migrants are processed at the border. Among other provisions, it would have fast-tracked asylum screenings such that they would only take 72 hours, a controversial provision that immigrant advocates argue would come at the expense of asylum seekers’ due process rights. It would also create four regional processing centers to house migrants arriving on the border that would effectively function as detention centers. Though the Cornyn-Sinema proposal didn’t go anywhere and had provisions that raised serious humanitarian concerns, there were aspects of it that might provide a starting point for future negotiations.
The Afghanistan crisis has also recently provided an opportunity for bipartisan action on immigration. Though some in the Republican Party have objected to the resettlement of Afghans in the US, members of both parties rushed to pass legislation speeding up efforts to process Afghans who aided the 20-year US war effort, increasing the number of available visas for them and easing some of the eligibility requirements. The July vote in the House was 407-16.
Democrats could try to harness some of the energy around resettling Afghans and use it to advocate for other similarly vulnerable groups of immigrants.
“Our sense is that there’s still a number of Republicans who would be willing to sit down and strike a deal,” said Ali Noorani, president of the National Immigration Forum. “The challenge for both parties is to say, is this a problem we actually want to address?”
Democrats should invest more in building consensus on immigration
Even if Democrats were able to pass their proposed path to citizenship via reconciliation — a measure that would have brought relief to a large proportion of the undocumented population — it would not have completely fixed the US immigration system’s longstanding flaws.
Much like the last time Congress legalized millions of undocumented immigrants in 1986, Democrats’ path to citizenship proposal didn’t address future immigration, just the immediate problem of people who are already living in the US without legal status. That was considered a major flaw of the 1986 law, which failed to resolve the challenge of unauthorized immigration for good, given that the undocumented population in the US has more than quadrupled in the intervening years.
To pass that kind of forward-looking legislation, Democrats need to get 60 votes in the Senate. For the foreseeable future without filibuster reform, that means getting 10 Republicans to sign on. They therefore can’t afford just to rely on interest in immigration reform among their own ranks — they also need to find a way to reach Republicans who haven’t historically supported increasing immigration.
Noorani said he believes that the way to do that is to make a shrewd economic and demographic argument for immigration, particularly at a local level.
Economists broadly agree that population growth fuels economic growth in wealthy countries. But the US is seeing dramatic decreases in population growth, and some parts of the US are already beginning to experience some of the downsides: Shrinking tax bases in rural areas have made it harder for government budgets to support essential services, such as infrastructure and public schools. As population growth slows, the pressure for cuts will likely grow. Meanwhile, the existing population continues to age; by 2030, the Census Bureau estimates that one in five US residents will be of retirement age.
With 80 percent of Americans living in counties that lost population over the past decade, it’s likely that local chambers of commerce and school superintendents will increasingly be feeling the pinch — and might be open to immigration as a solution.
In his research with Danilo Zak, also of the National Immigration Forum, Noorani argues that the US should increase net immigration levels by at least 37 percent, or about 370,000 additional immigrants a year, to prevent a “demographic deficit” stemming from low population growth.
“It’s really hard to see how, socially and economically, we continue to thrive as a country if such large swaths of our geography are losing population,” Noorani said. “We’ve got to be thinking about these issues through the prism of somebody’s checkbook and what they and their families want to do over the course of the next 5, 10, 15 years.”
Democrats could, and should, do far more to harness this case for immigration, particularly to sway Republicans representing conservative rural districts, as well as those sensitive to the needs of small businesses.
In recent years, the GOP has worked to position itself as the party with greater insight into what is good for the US economy — from advocating for personal and corporate tax cuts during the Trump administration to more recently issuing warnings about federal spending in the Biden administration. There is a case for immigration that speaks to the Republican economic worldview. It’s up to Democrats to make it.