Democrats Have Two Immigration Options In Reconciliation Debate

Democrats blame the Senate parliamentarian for stopping their effort to grant lawful permanent resident (LPR) status to several categories of illegal aliens using the budget reconciliation process. They point to a recent advisory opinion issued by the parliamentarian that suggests that the Democratic effort violates the Byrd Rule’s prohibition against senators’ including policies in a reconciliation bill unrelated to the federal budget. In the parliamentarian’s opinion, the budgetary impact of the LPR provision - the fiscal consequence of granting LPR status to the affected people - is “merely incidental” to its non-budgetary components.

However, whatever the merits of the parliamentarian’s advisory opinion, she cannot remove the LPR provision from the Build Back Better Act (HR 5376) reconciliation bill if the House includes it. The only way that the Senate can take it out is by senators raising a point of order against the provision or offering an amendment to strike it. And Democrats can make it harder for senators to take either action successfully - without violating the Senate’s rules. 

First, the Senate’s presiding officer – Vice President Kamala Harris – can rule that a senator’s point of order against the LPR provision is not valid. Ruling this way makes it harder for the provision’s opponents to strike it from the underlying bill because it takes a three-fifths vote of the senators duly chosen and sworn (typically 60) to overturn the vice president’s ruling in this case.

Second, House Democrats can make it harder for senators – including Democratic senators – to remove the LPR provision with an amendment simply by adding it to the end of the reconciliation bill. Doing so allows the provision’s supporters an opportunity to force a clear vote – not subject to a point of order - on the question of keeping it in the bill.