There will be no new immigration law under Biden, unless he changes course

Senate Majority Leader Chuck Schumer (D-N.Y.) is reportedly considering an end run around the regular legislative process. He wants to pass an immigration reform bill that would legalize millions of undocumented immigrants, but he hasn’t been able to get the 10 Republican votes he needs to overcome a Republican filibuster.

The filibuster could be eliminated with a simple majority vote, but that would require all 50 Democratic Senators to vote for eliminating it, and two of them — Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) — are opposed.

Sen. Manchin has said that if the filibuster is eliminated, “a new and dangerous precedent will be set to pass sweeping, partisan legislation that changes the direction of our nation every time there is a change in political control.”

Obstacle to Republican support

Republicans are refusing to consider a legalization program until the Biden administration strengthens security at the Southern border. Sen. Lindsey Graham (R-S.C.), a leading GOP voice on immigration, has said, “We cannot possibly pass any legalization legislation until we regain control of the border.”

And Sen. John Cornyn (R-Texas) has said, “Before we can do anything meaningful on immigration, we’re going to have to deal with the current crisis at the border.”

This makes sense when you consider what happened when the Immigration Reform and Control Act of 1986 (IRCA) established the last major legalization program. The expectation when IRCA was passed was that its enforcement and border security measures would prevent the aliens it would legalize from being replaced by a new group of undocumented aliens.

That might have worked, but the immigration enforcement measures were not implemented, and the border was not secured. The 2.7 million undocumented aliens whom the IRCA legalized were replaced by a new group of more than 5 million undocumented aliens within ten years.

A Yale study indicates that there may be more than 22.1 million undocumented aliens in the United States now.

Crisis at the border

Biden’s Homeland Security Secretary has acknowledged that the United States is facing the biggest surge in illegal border crossings in 20 years.

The border patrol apprehended more than 170,000 undocumented immigrants at the U.S.-Mexico border in April. Another 40,000 illegal crossers — approximately — evaded apprehension. These are the so called “got aways” that the agency detects through technological and other tracking efforts.

Moreover, Biden has severely restricted which deportable aliens Immigration and Customs Enforcement (ICE) can arrest in the interior of the country. ICE arrests decreased by more than 60 percent during Biden’s first 100 days in office. 

It isn’t going to be possible to secure the border if illegal crossers know that they will be safe once they have reached the interior of the country. I call this the “home free magnet.”

Schumer’s end-run plan

Schumer can’t end the filibuster, and he isn’t going to get cooperation from the Republicans unless Biden makes major changes in his immigration policies, which isn’t going to happen.

This just leaves the end-run plan: Add the immigration bill to President Biden’s infrastructure bill, which is controlled by a process known as “budget reconciliation” that is not subject to filibusters.

Is that even possible?

According to Sen. Cornyn, it isn’t, but the decision will be made by an official known as the “parliamentarian,” and the current person in that role has ruled against Democrats and Republicans alike.

“I think they’re dreaming,” said Cornyn. “I don’t think the parliamentarian will allow that. That’s not really the purpose of reconciliation.”

The Byrd Rule

Reconciliation was established by Section 310 of the Congressional Budget Act, which allows Congress to expedite budget resolutions with new spending priorities to address the needs of the moment. It has been used to pass 25 reconciliation bills.

Bills that goes through this process in the Senate are not subject to filibusters, and they can be passed with a simple 51-vote majority.

Over time, however, measures were passed through the reconciliation process with provisions that weren’t aligned with reducing the deficit; measures that had no budgetary effect, that increased spending, or that reduced revenues.

Congress dealt with this problem by adding the so-called “Byrd Rule” to section 313 of the Budget Act. The Byrd Rule makes it possible for Senators to remove provisions they think are extraneous by offering an amendment or raising a point of order. 

Section 313(b)(1) of the Budget Act states that provisions are extraneous if they —

1. Do not produce a change in outlays or revenues;
2. Produce changes in outlays or revenue which are merely incidental to the non-budgetary components of the provision;
3. Are outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
4. Increase outlays or decrease revenue if the provision’s title, as a whole, fails to achieve the Senate reporting committee’s reconciliation instructions; or
5. Increase net outlays or decrease revenue during a fiscal year after the years covered by the reconciliation bill unless the provision’s title, as a whole, remains budget neutral.

The Senate parliamentarian

Elizabeth MacDonough has been the Senate parliamentarian since 2012, and although she was appointed by Democrats, she is not obliged to rule in their favor. A few months ago, she ruled that the Democrats could not include a $15 per hour minimum wage hike in the COVID-19 economic relief bill.

Progressive Democrats asked Vice President Harris to overrule her, and Rep. Ilhan Omar (D-Minn.) called for MacDonough to be replaced.

The White House refused to intervene, issuing a statement saying the president was “disappointed” in the ruling but “respects the parliamentarian’s decision.”

Senators can overrule a point of order that has been sustained or waive the Byrd Rule, but it takes 60 votes to do either. If Schumer could get 60 votes for the legalization bill, he would be able to stop a filibuster and wouldn’t have to resort to the reconciliation process in the first place.

Frankly, I don’t think it will be possible for the Democrats to pass any significant immigration bills during Biden’s presidency — unless he makes significant course corrections from where we are now.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.