Democrats' immigration proposal rejected by Senate parliamentarian

Democrats' measures need to comply with series of rules associated with reconciliation

The arbiter of Senate rules found that Democrats’ plan to provide temporary protections for immigrants living in the U.S. illegally can’t be passed as a component of party lawmakers’ roughly $2 trillion education, healthcare and climate package

The guidance provided by Senate parliamentarian Elizabeth MacDonough is set to force Democrats to remove the protections from the bill, the third time the party’s immigration proposals have been found to run afoul of the chamber’s rules. The current provisions would have shielded immigrants from deportation for five years and would have provided a five-year renewable work authorization, available to any immigrant who arrived in the country before 2011. 

All of the measures Democrats hope to advance in the wide-ranging $2 trillion package must comply with a series of rules associated with reconciliation, the process Democrats are using to advance the legislation and skirt a filibuster in the Senate. 


Sen. Dick Durbin, D-Ill., speaks at the J Street National Conference.

Sen. Dick Durbin, D-Ill., speaks at the J Street National Conference.  (Michael Brochstein/SOPA Images/LightRocket via Getty Images / Getty Images)

Chief among reconciliation’s restrictions is that measures in the bill must relate directly to the federal budget. In a brief finding, Ms. MacDonough objected to multiple aspects of the immigration proposal, including that it would allow some immigrants under the program to become eligible for green cards, and that the government wouldn’t have leeway to turn down some immigrants if they met the standards for the program. 

She also said the measure covered substantially the same population as previous proposals that she rejected. 

"These are substantial policy changes with lasting effects, just like those we previously considered, and outweigh the budgetary impact," she wrote, according to a copy of her ruling reviewed by The Wall Street Journal. 

The Congressional Budget Office estimated that the immigration provision would cover about 6.5 million immigrants living in the U.S. illegally. 

Sen. Richard Durbin (D., Ill.), who helps craft immigration policy as the chairman of the Judiciary Committee, said he was disappointed by the finding. 

"We’re considering what options remain," Mr. Durbin said. 

The stakes of the effort are perhaps highest for young immigrants known as Dreamers, many of whom rely on a program called Deferred Action for Childhood Arrivals, or DACA, to protect them from deportation and allow them to work legally. A federal court in Texas ruled the Obama-era program was illegal in a decision last summer and analysts expect the issue will eventually reach the Supreme Court. 

The parliamentarian’s ruling doesn’t touch on a separate set of proposals designed to help immigrants caught in yearslong green card backlogs by recapturing unused visas from previous years and creating extra fees for some immigrants to jump ahead in line. Democrats sent the parliamentarian a memo on those provisions last week, according to Democratic aides familiar with the matter. 

The absence of the temporary immigrant protections from the bill is set to frustrate both immigration advocates and Democrats, some of whom have insisted that the $2 trillion package include immigration measures. Some have also called on Senate Democrats to ignore the parliamentarian’s finding and move forward with the measures anyway. 


While centrist Democrats have said they don’t support such a move, advocates and some progressive Democrats may now begin to more vocally advocate for it. 

"This can be disregarded," said Rebecca Shi, executive director of American Business Immigration Coalition, a group advocating for a path to citizenship or other measures for immigrants in the country without permission. "The Senate should move forward with a path to citizenship for the essential workers and dreamers who have worked and made our nation stronger throughout Covid." 

Sen. Chuck Grassley (R., Iowa), the top Republican on the Senate Judiciary Committee, applauded the parliamentarian’s finding. 

Sen. Chuck Grassley, R-Iowa, speaks with reporters before a vote at the U.S. Capitol Building before a Senate Luncheons on Oct. 19, 2021, in Washington, D.C.

Sen. Chuck Grassley, R-Iowa, speaks with reporters before a vote at the U.S. Capitol Building before a Senate Luncheons on Oct. 19, 2021, in Washington, D.C.  (Anna Moneymaker/Getty Images / Getty Images)

"Trying to shoehorn radical immigration policy provisions into reconciliation has always been about avoiding bipartisan negotiation and compromise," he said in a statement. 

Immigration is one of several measures in the social spending and climate legislation that the parliamentarian could find is inconsistent with the Senate’s reconciliation rules. Lawmakers and aides also expect that the bill’s proposal to regulate drug prices in the commercial market could also run afoul of reconciliation’s restrictions. 


Beyond working through the procedural challenges, Democrats are also working to build the necessary political support for the package. Sen. Joe Manchin (D., W.Va.), whose support Democrats will need in the 50-50 Senate, has continued to raise concerns about the bill’s structure, among other issues. 

In a statement Thursday, President Biden said Democrats would continue working on the bill. 

This article first appeared in the Wall Street Journal