Democrats have another plan to include immigration reform in the reconciliation bill

AP Photo/Jacquelyn Martin

By now everyone has seen the video of progressive activists following Sen. Kyrsten Sinema into a bathroom. What some may not realize is that their effort as part of the group Living United for Change in Arizona (LUCHA) had a very specific purpose. The activists were demanding that Sen. Sinema support the Build Back Better bill aka the Democrats’ reconciliation mega bill. The activists were also talking specifically about deportation and the status of Dreamers (who lose their status if they leave the country).

As Allahpundit pointed out when he wrote about this yesterday, there is no pathway to citizenship in the BBB bill but that has nothing to do with Sen. Sinema. In fact, the Senate parliamentarian has twice ruled that Democrats cannot force immigration reform into the BBB bill because reconciliation bills, be definition, are concerned with budgetary issues. Sweeping immigration reform just isn’t something you can do with 50 votes. Here’s CNN with the backstory on the Democrats’ first two failed attempts:

The Senate Parliamentarian on Wednesday rejected Democrats’ second attempt to try to include a pathway to legalization for immigrants in a bill that could be passed with just Democratic support, a source tells CNN.

Democrats argued this time to the parliamentarian that they include a provision to change the registry date from 1972 to 2010 for the legalization of immigrants and it could be passed using budget reconciliation…

Immigrant advocacy groups were disappointed by the parliamentarian’s earlier ruling against a separate proposal to include legalization, but remained optimistic. Sergio Gonzales, Immigration Hub’s executive director, said at the time the decision “is not the final straw.”

The Center for Immigration Studies says the first bill (plan A) would have offered a path to citizenship for about 8 million people. The second attempt (plan B) would have offered citizenship to about 6.7 million. Now, according to a report from the Hill, Democrats are moving on to plan C.

“The next one in line is this parole option, which is not as ambitious as the first two, but it also brings relief to a significant number of people that are here without any documentation and allows them the ability to work,” said Rep. Adriano Espaillat (D-N.Y.), who along with Reps. Jesús García (D-Ill.) and Lou Correa (D-Calif.) has vowed to vote “no” on any reconciliation bill without immigration provisions.

This option would grant temporary immigration and work benefits to potentially millions of people, but not a direct path to citizenship.

It remains to be seen if the parliamentarian will give her blessing to plan C. But there is yet another option which a group of 92 legal scholars are now pushing. Instead of winning over the parliamentarian, they argue that VP Harris, acting as the President of the Senate, can simply ignore her.

The 92 scholars called on Harris, Senate Majority Leader Charles Schumer (D-N.Y.) and Senate President Pro Tempore Patrick Leahy (D-Vt.) not to “overrule” Parliamentarian Elizabeth MacDonough, whose rulings are non-binding, but for the presiding officer of the Senate to issue a ruling contrary to her advice…

“When determining whether a provision is extraneous, the Presiding Officer may rely on the Senate Parliamentarian for expert advice,” wrote the scholars. “However, as past Parliamentarians have emphasized, the ultimate decision on a point of order lies with the Presiding Officer, subject to appeal to the full Senate.”

“The Presiding Officer therefore must exercise her own judgment in deciding whether a provision should be stricken from a budget reconciliation bill on Byrd Rule grounds,” they added.

A ruling by the Presiding Officer aka VP Harris that a path to citizenship can be included in the reconciliation bill could be appealed but defeating an appeal only requires 51 votes. So Harris could make up her own ruling and then vote to defeat a challenge to it. Democrats would technically be arguing immigration reform passes the Byrd rule and therefore can be included in the bill according to the judgment of Presiding Officer Harris.

But of course, Democrats would still need 51 votes to make this happen. If one Senator decides they don’t want to play this game of ignoring the advice of the parliamentarian, then it’s over. And that’s probably why these activists are hounding Sen. Sinema in the bathroom and on airplanes. They need her to get in line with this scheme to force immigration reform through reconciliation or it won’t work.