Congress Can Ignore Immigration Guidance From Senate Parliamentarian

Sep 9, 2021
12:14 PM

While Rep. Alexandria Ocasio-Cortez looks on, Sen. Charles Schumer speaks during a news conference in the Queens borough of New York, Monday, Feb. 8, 2021. (AP Photo/Seth Wenig)

WASHINGTON, D.C. — Elizabeth MacDonough, the Parliamentarian of the United States Senate, will finally hear arguments this Friday for including immigration reform in the Democrats’ multi-trillion-dollar budget proposal, but that doesn’t mean that Democratic leadership has to follow her lead.

“You don’t have to do what the Parliamentarian says,” a senior aide familiar with the Democrats’ budget reconciliation strategy told Latino Rebels on Wednesday. “It’s just practice to do so.”

No matter how MacDonough rules, her guidance to the Senate is non-binding, according to the Congressional Research Service (CRS).

“As a staff official, neither Parliamentarian is empowered to make decisions that are binding on the House or Senate,” CRS noted. “The Parliamentarians and their deputies/assistants only offer guidance that the presiding Representative or Senator may accept or reject; individual Members may appeal rulings.”

In other words, Majority Leader Charles Schumer (D-NY) can ignore or even replace the Senate Parliamentarian.

POLITICO reported that a final decision over the immigration arguments MacDonough hears is not expected to be imminent.

January 6

Still, part of why Democrats have followed MacDonough’s guidance in the current Congress has to do with the January 6 attack on the Capitol, when MacDonough’s staff saved electoral votes from rioters.

“It made her untouchable,” a senior aide in Democratic leadership told Latino Rebels. “Otherwise, we would have fired her over the minimum wage.”

MacDonough, the first woman to serve as Senate Parliamentarian, famously advised against including a $15 minimum wage in the February COVID relief bill. House Progressive Caucus whip Reps. Ilhan Omar (D-MN) and Ro Khanna (D-CA) organized a letter signed by 20 House progressives calling for MacDonough to be overruled. The progressive letter was ignored.

Progressives now have a new momentum in the lower chamber after Rep. Cori Bush (D-MO) brought the White House to the negotiating table over eviction moratoriums before the House of Representatives went on recess in August.

The Parliamentarian, who is normally a low-key staffer out of the public light, could face searing criticism from progressive members of Congress if her guidance over Democrats’ budget diverges from the Biden administration’s massive social agenda the White House is pushing through the bill. This includes provisions for some kind of immigration reform.

Senator Bernie Sanders (I-VT) and Rep. Alexandria Ocasio-Cortez (D-NY) both expressed support for overruling MacDonough.

“I hope it doesn’t come to that,” Senator Dick Durbin (D-IL) said in the summer.

“We’re not there yet,” Senator Catherine Cortez Masto (D-NV) told Latino Rebels on July 30.

Legal Precedents

Senator Tim Kaine (D-VA) recently told Latino Rebels about a 2005 decision by MacDonough’s predecessor, Alan Fruman, to include an immigrant legalization program in a budget reconciliation agreement that passed the Senate without objection, but was ultimately never enacted into law.

“I think in that case it was something like from a work visa to a legal permanent resident status and that was fine to include in a reconciliation bill,” Kaine said. “With that precedent, obviously we have to meet Parliamentarian standards on anything in the bill, but we think there’s precedent for including some immigration components in it.”

Had the 2005 budget agreement become law, it would have effectively increased the number of green cards issued annually by putting unused immigrant visas back into circulation for qualified immigrants, thus creating the precedent Kaine and other Senate Democrats hope will help MacDonough determine that permanent relief for millions of undocumented immigrants is permissible through budget reconciliation.

Ocasio-Cortez said the Parliamentarian’s definition of “essential workers” in pandemic spending bills is an additional precedent for MacDonough to consider when crafting guidance for the upper chamber.

Overcoming the Parliamentarian

In 2001, Trent Lott (R-MS) was the last Senate Majority Leader to oust the Parliamentarian. After a series of disagreements over the GOP budget agenda in a 50-50 split Senate, Lott dismissed Robert B. Dove, a 35-year-veteran of the Senate. Dove, a Republican aide, had been replaced before in 1987 when Democrats won the majority in both chambers.

The final straw in Dove’s demise, according to New York Times reporting at the time, was a refusal to greenlight a $5 billion reserve fund for natural disaster relief in a budget bill.

The Republican Party has shifted right since then, and the scale of spending has ballooned on Capitol Hill, but the Senate is split 50-50 again in the 117th Congress.

Vice President Kamala Harris is the likely presiding vote in any budget reconciliation bill Democrats bring to the floor of the upper chamber. The Parliamentarian ultimately reports to the presiding Office of the Senate, which in the case of any budget reconciliation bill in an evenly split Senate would likely be Harris.

The Senate is currently adjourned until votes on Monday, September 13 at 3 p.m. ET. The House of Representatives is adjourned until votes on Monday, September 20 at 6:30 p.m. ET.


Pablo Manríquez is Latino Rebels’ Washington correspondent. He is an immigrant from Santiago de Chile with a political science degree from the University of Notre Dame. The Washington Post calls him “an Internet folk hero.” Twitter: @PabloReports.