Senate Parliamentarian in Immigration Spotlight (Again)

Oct 27, 2021
4:17 PM

Photo by Pablo Manríquez/Latino Rebels

WASHINGTON, D.C. — Senate Majority Whip Dick Durbin (D-IL) is leading a third proposal to the Senate Parliamentarian for including immigrant relief in the Build Back Better Act (BBB), Joe Biden’s signature social spending bill.

“The first proposal, which created a pathway to citizenship, was my preferred approach,” Durbin told reporters on Tuesday. “When that didn’t work, we tried another informally, and now we’re trying a third.”

The third proposal (“Plan C”) will most likely be delivered to the Parliamentarian on Friday but could come as late as next week, according to a senior Senate aide who spoke with Latino Rebels on the condition of anonymity.

The first proposal to the Parliamentarian (“Plan A”) was to create an immigrant legalization program for over 8 million undocumented immigrants from four categories articulated this summer by the White House: DACA recipients, farmworkers, Temporary Protected Status holders, and essential workers.

The second proposal (“Plan B”) was to change the registry date from 1972 to 2011, giving millions of undocumented immigrants and immigrants stuck in Green Card backlogs a pathway to citizenship. Plan B was submitted to the Parliamentarian informally, meaning it was not sent to the Congressional Budget Office for scoring, a prerequisite of formal pitches to the Parliamentarian.

Parliamentarian Elizabeth MacDonough nixed both of the first two proposals, which Durbin and Majority Leader Charles Schumer (D-NY) lead in collaboration with the four Hispanic Caucus Senators: Bob Menendez (D-NJ), Catherine Cortez-Masto (D-NV), Alex Padilla (D-CA), and Ben Ray Luján (D-NM).

Bloomberg reports that Plan C is to create a special form of temporary immigrant parole, which would include a temporary work permit and protection from deportation.

Two Senate aides now tell Latino Rebels that an additional layer of protection created by Congress to prevent parole status from being stripped by future administrations may be part of the Plan C proposal, and that the parole itself might be renewable after five years.

One Latino senator, who wished to remain anonymous, expressed concern on Tuesday over whether immigrant parole can actually be made “airtight” against future GOP rule in Congress. “If immigrants can be protected by a budget resolution, can those protections be undone by a future budget process?” the senator asked.

“I don’t know. That’s something we’re working on.”

Overall, Latino Democrats in both chambers express tepid support for Durbin’s Plan C proposal. In the House, Hispanic Caucus members called parole “a radical departure” from the citizenship promises that Democrats made to voters from immigrant communities in 2020. Rep. Lou Correa (D-CA) and 43 other House Democrats signed a letter late last week calling on Sen. Schumer to disregard the Parliamentarian.

The letter calls for “a binding ruling that would require a supermajority to be sustained” that would, in effect, disregard the Parliamentarian’s guidance on immigrant relief.

“There are procedures that could be used [to disregard the Parliamentarian], but whether they will be remains to be seen,” said Durbin when asked by Latino Rebels about the House letter.

A simple majority of senators is needed to disregard the Parliamentarian. Given that control of the Senate is currently split evenly between the Democratic and Republican caucuses, should Biden’s spending make it to the floor for a final vote, all 48 Democratic senators, the two Independent senators caucusing with them, plus the presiding officer of the Senate —likely to be Vice President Kamala Harris herself— will need to vote in the affirmative.

“The problem with ignoring the Parliamentarian is that it blows up the Byrd Rule, which means it blows up reconciliation,” said a senior senator in the Democratic caucus, who also wished to remain anonymous. “If a simple majority can do whatever it wants in a budget bill, it makes the Byrd Rule meaningless. That’s not to say it won’t happen, but that’s a monster we can’t put back in the box.”

The Byrd Rule, named for former Senate Majority Leader Robert Byrd (D-WV), limits what can be included for consideration in a reconciliation bill or resolution in the Senate.

Progressive Caucus members say they are not backing down from including immigrant relief in BBB.

On Tuesday, Caucus Whip Rep. Ilhan Omar (D-MN) confirmed that immigrant relief remains one of the five progressive priorities for the spending bill. “This is a promise that we’ve continuously made to our immigrant brothers and sisters,” Omar told Latino Rebels, adding that earlier in the day House Speaker Nancy Pelosi (D-CA) had walked through “the process of what can happen with the Byrd Rule and some of the procedural stuff the Parliamentarian can do.”

“This is not a fringe wishlist,” said Rep. Ayanna Pressley (D-MA), another Progressive Caucus member. “The same essential workers, the people we were banging pots and pans for and clapping for, are the same ones we’re abandoning right now with no pathway to citizenship.”

Biden’s spending bill needs Progressive Caucus support to pass in the House just as much as it needs the support of Sens. Joe Manchin (D-WV) and Kirsten Sinema (D-AZ) to pass in the Senate.

Neither Manchin nor Sinema has expressly opposed citizenship in BBB, but Manchin has said that he does not believe immigrant relief will be in the final bill.

“I don’t think it’s going to be in there. I really don’t,” said Manchin told Latino Rebels on October 4. “I think it’s too big for that.”

Manchin also said that he was unwilling to “bust the Byrd Rule” when asked by Latino Rebels if he agreed with the Parliamentarian’s decisions on Plans A and B.

The Washington Post reported on Tuesday that Plan B had reemerged in strategy discussions by Congressional Democrats scrambling to advance a level of immigrant relief that advocates will find acceptable. A placeholder may be inserted into the bill that can eventually be substituted for another proposal.

Plan B has a fan in Durbin. “While I respect the Senate Parliamentarian very much, I disagree with at least her second conclusion as to the extension of an effective [registry] date,” Durbin told Latino Rebels on Tuesday. “I think that is something that should be allowed in a reconciliation bill.”

Whether Durbin and the rest of the Senate Democratic caucus, plus Vice President Harris, supports changing the registry date enough to overrule the Parliamentarian over it also remains to be seen.

Outside Congress, immigrant rights advocates are outraged at the prospect of coming away empty-handed from Biden’s spending bill. Overall progressive support for Plan C has been tepid at best, with many progressives in Congress and outside advocates skeptical.

Parole “is not what our people have been joining the movement for,” said Glo Choi, a Nakasec organizer, at a protest on Sunday at the entrance to the U.S. Naval Observatory, which houses the vice-presidential residence. “That’s not what they’ve been fighting for all this time. When we think of victory, that’s a pathway to citizenship.”

The weeklong protest outside Harris’s home is calling on the Vice President to ignore the Parliamentarian’s guidance on immigration reform.

“If Kamala Harris is going to use her story as a daughter of immigrants,” said María Mayela Rocha-Carrillo, another Nakasec organizer, “then she needs to look at who voted her into office, because a lot of Latinos are putting their lives into her promise.”


Pablo Manríquez is the Washington correspondent for Latino Rebels. Twitter: @PabloReports