Senate parliamentarian Elizabeth MacDonough has ruled against Democrats' efforts to include a massive immigration reform effort in their $3.5 trillion proposed spending bill, dealing the party a setback that very likely closes the door on efforts to include a pathway to citizenship in the partisan legislation.
Democrats and Republicans made arguments more than a week ago before MacDonough, several congressional sources told NPR. Democrats argued that a pathway to citizenship for 8 million immigrants would raise the budget deficit by about $139 billion, a congressional source said, and such an impact would be the rationale for including it in the reconciliation process, which is reserved for budgetary legislation.
That process allows Democrats to pass legislation with a simple majority, sidestepping a filibuster by the GOP in the 50-50 Senate. Republicans have been steadfast in their opposition to the move.
Although MacDonough's predecessor had warned this could be the outcome, Senate Majority Leader Chuck Schumer and other Democrats expressed deep disappointment and vowed to continue fighting for new pathways to citizenship for immigrants in the country illegally.
"Despite putting their lives on the line during the pandemic and paying their fair share of taxes, they remain locked out of the federal assistance that served as a lifeline for so many families," Schumer said in a statement. "We will continue fighting to pursue the best path forward to grant them the ability to obtain lawful status."
Schumer said Democrats would hold additional meetings with the parliamentarian in the coming days to try to find alternate ways to include the citizenship opportunities. However, the odds are stacked against Democrats with no such precedent.
Democrats were charged with proving that immigration reform would have a direct budgetary impact to allow such an issue to be included in a budget reconciliation bill. The budget reconciliation process allows Democrats to pass legislation without Republican votes, and currently at $3.5 trillion, it already includes a long list of massive social spending measures.
"We are deeply disappointed in the Parliamentarian's decision, but the fight for immigration reform will continue," Senate Majority Whip Dick Durbin, D-Ill., the chairman of the Senate Judiciary Committee, and California Democratic Sen. Alex Padilla, both key players in the debate, said in a joint statement..
"Senate Democrats have prepared an alternative proposal for the Parliamentarian's consideration in the coming days," Durbin and Padilla added.
In her ruling, MacDonough said such an immigration policy change would "far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation."
She also noted the disconnect for the actual impact on the budget in her ruling, which was obtained by NPR from a source familiar with the talks who was not authorized to speak on the record.
"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," MacDonough said in her ruling.
In their arguments before MacDonough on Sept. 10, Democrats said a pathway to citizenship for 8 million immigrants would have an $139 billion impact on the budget. They said four categories would be considered for citizenship: Deferred Action for Childhood Arrivals recipients, those with Temporary Protected Status, farm workers and other essential workers.
Democrats also argued that the reforms could add $150 billion in spending to the U.S. economy every year and grow the nation's gross domestic product by $1.5 trillion over the next decade.
The day of the arguments, MacDonough asked for additional information, said New Jersey Democratic Sen. Bob Menendez, a key figure in the immigration talks. The request raised Democrats' hopes they could draw a positive ruling from the parliamentarian, Menendez said last week.
"I take that as a good sign that she didn't reject the proposition out of hand," Menendez said on Tuesday. "I don't know if she's buying time as much as she is trying to be fully informed so she can make the right decision."
Now, Democrats face an uphill battle without enough votes in the evenly divided Senate to pass any such reform without help from Republicans. And with concerns on the border continuing to spike, GOP members said the ruling from the parliamentarian was the right one.
"I believe that using the reconciliation process to provide legal status to illegal immigrants would be a disaster," said South Carolina Republican Sen. Lindsey Graham, who has been involved in previous bipartisan talks on immigration reform efforts. "It would have led to an increased run on the border – beyond the chaos we already have there today."
Many immigration advocate groups had pinned their hopes on the legislation as their best shot in years to pass immigration reform. They, along with Democrats, pointed to a 2005 reconciliation bill that included immigration reform as setting precedent for the move.
However, MacDonough's predecessor, Alan Frumin, told NPR earlier this year that the issue had not been directly litigated when he was the Senate parliamentarian in 2005. Instead, he said, the effort had bipartisan support at the time and was not directly challenged.
Had it been directly challenged, Frumin doubted it would have reached the threshold of having a direct budgetary impact.
"If the only thing people have to say was, it was good in 2005, therefore it's good now, I would say that's not enough," Frumin said.