Jared Culver's Picture

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  by  Jared Culver

Sunday night the Senate Parliamentarian upheld the common sense proposition that immigration legislation providing amnesty to at least 8 million people is not primarily a budgetary matter ripe for budget reconciliation. Immediately, the outcry from the proponents for declaring immigration simply a budgetary matter was to either ignore the decision or offer alternative immigration provisions that would reach the same goal. Unfortunately, the option more likely to succeed is ripping up the rules of the Senate once and for all.

First, a quick review of the parliamentarian’s role. The Senate Parliamentarian is an advisory office to the Senate. It carefully records and applies precedents collected over centuries of Senate debate. Like in the judicial system, the idea is to rule on disputes where possible based on how the Senate has applied the same rule previously. This creates a level playing field for all Senators and predictability in the outcomes over time. The Parliamentarian does not write the rules nor do they make final decisions. They simply check the precedents and inform the Chair how the rules have been applied. It is up to the Senators themselves to determine the ultimate application or not of the rules they wrote.

In this particular instance it is important to recognize the question the Parliamentarian was asked by Senate Democrats. Here it was whether the amnesty “is a policy change that substantially outweighs the budgetary impact of that change.” I have covered this before and reached the conclusion that immigration issues are far larger in implications than mere budget matters. This is the big question because reconciliation is an extraordinary tool for a very narrow set of budgetary matters. The Parliamentarian’s job was to answer whether the Senate Democrats were playing within the budgetary rules or skirting them to push far larger policy goals.

Here, the implications of amnesty for 8 million people extend far beyond budgetary considerations. The decision briefly outlines some of the employment, education, and political benefits accrued as a result of amnesty that have massive implications on public policy in the country and none of which are remotely budgetary in nature. The decision states: “Changing the law to clear the way to LPR (legal permanent resident) status is [a] tremendous and enduring policy change that dwarfs its budgetary impact.”

Some Democrats are already discussing ways around this ruling. They want to offer alternatives such as adjusting dates on 245(i) adjustment. 245(i) allowed some aliens ineligible for adjustment to apply for legal permanent resident status based on certain criteria including date deadlines for presence and application. Extend the dates further out, goes the theory, and open up the path for many more aliens to apply that otherwise are barred. Democrats are now supposedly going to offer the parliamentarian this proposal to see if it violates the rules and precedents.

But reading the parliamentarian’s reasoning, it is hard to see how any alternative that allows amnesty for a massive amount of people could escape the same decision released on Sunday. If you are allowing massive changes to immigration policy to provide amnesty to millions the implications are clear. It will be a “tremendous and enduring policy change that dwarfs its budgetary impact.”

So it is difficult to see how Democrats can draft a proposal that both provides massive amnesty and doesn’t run afoul of the Byrd Rule reconciliation requirements. That leads to the new norm busting nuclear option: In their zeal to shred all pretense of regular order rules, some activists have begun calling for Vice President Harris to ignore the Senate precedents altogether. While it would destroy the reconciliation process and the integrity of the rules as generally applicable, it also has the potential to actually work.

Here is how it would work: The Vice President would receive a point of order challenging the immigration provisions as extraneous to the reconciliation process. Now, the normal way the process works, the Parliamentarian’s advisory opinion would be accepted and applied. The Vice President would sustain the point of order and strike the offending immigration provisions from consideration. At that point, Senate Democrats could appeal that ruling and if 60 Senators agreed they could overrule. However, we know that there are not 60 votes to overrule so the Democrats are in a pickle.

This is where the new super nuclear option begins to take hold. In this scenario, the Vice President rejects the considered decision of the Parliamentarian. She instead simply rejects the point of order offered against the immigration provisions despite all precedent. Keep in mind that, in this scenario, the Vice President would be rejecting the very precedents she is entrusted to uphold. This would be an extraordinary rejection of regular order and precedent. But if she did so the entire trajectory of the vote to appeal changes. Republicans could appeal the Vice President’s blatant political ruling, but it would require 60 votes to sustain their appeal. If there are not 10 Senate Democrats willing to stand up and defend the rules, then amnesty could survive.

Let there be no doubt how extraordinary this would be for the Senate. Both sides have engaged in partisan hackery surrounding the filibuster, reconciliation, and well...pretty much everything (including Senator Ted Cruz championing the same super nuclear option during the reconciliation debacle surrounding Obamacare repeal in the early days of the Trump Administration). Then-Senate Majority Leader Reid nuked the filibuster for some executive nominations and later Senator McConnell finished the job. This occurred with Senate Democrats and Republicans acting as if the other side was violating norms while their own actions were the epitome of prudent long term leadership. Generally speaking, this reconciliation process is a basic end-run flanking maneuver around the legislative filibuster that is hanging on by a thread. Shoving tons of extraneous non-budgetary matters that could never survive a legislative filibuster into reconciliation is properly understood as the nuclear option by other means.

However, what is now being contemplated goes beyond the shenanigans we have witnessed thus far. Instead of changing the rules they do not like to benefit their political position, Senate Democrats would simply ignore rules without even going through the trouble of changing them. The shift at that point is that Democrat leaders will not even have to get support from their own members, like with the nuclear option, before shredding the rules. Manchin and Sinema could not stop this ploy even if they were inclined.

The implications of such a strategy are difficult to game out. At that point all of the rules of procedure are simply suggestions erased at the whim of leadership. Leadership would control which rules apply, and unless individual Senators had courage (which any Senate watcher knows is in extremely short supply), could become tin-pot tyrants. When leadership does not even need the full backing of their own party to wield total arbitrary power, the Senate is kaput. It would not be clear why there would need to be a parliamentarian’s office at all and certainly there would be no need to study precedent. The only precedent worth noting henceforth would be the one where the Chair decided precedent does not matter when it contradicts the policy goals of leadership.

I hate to dampen the mood, but for those that are popping champagne after the correct ruling from the Parliamentarian, the fight is just beginning. It was a brave move to stand up for the rules, but even more pressure will rise for her to accept some “alternative” that does amnesty in a less overt way. And if she holds fast to defending the rules and applying precedent fairly, the Democrats might just burn the Senate down to save their policy goals. Senate Democrats like Senators Manchin and Sinema must be asked clearly if their defense of the filibuster is only skin deep. Would they support ignoring the rules altogether? Would they support a reconciliation bill that was traded for the death of the institution? Each and every single Senate Democrat should be on the record immediately that they would not support shredding the rules for amnesty. Otherwise, we are rapidly approaching a point of no return.

JARED CULVER is a Legislative Analyst for NumbersUSA

Updated: Wed, Oct 6th 2021 @ 1:25pm EDT

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