The House’s version of Build Back Better, which passed last week, includes temporary work and deportation protections through a parole program that allows some undocumented people to change their status to prevent deportation.
Those immigration provisions in the House bill now are under review by the Senate parliamentarian, Elizabeth MacDonough, who is nonpartisan and provides advice and help on Senate rules and procedures.
The situation is complicated because Build Back Better is being considered under a process known as reconciliation so that only a simple majority vote is required in the evenly split Senate.
But it also means that the bill must relate to matters that affect spending, revenues, the deficit or the debt limit.
Senate Democrats already have tried to provide the Senate Judiciary Committee with $107 billion for “lawful permanent status for qualified immigrants” through the reconciliation bill, but the Senate parliamentarian turned it down.
The House members argue that “the role of the Parliamentarian is an advisory one, and the Parliamentarian’s opinion is not binding.”
“We cannot let an unelected advisor determine which promises we fulfill and which we do not, especially when the vast majority of Americans— in both parties—want us to provide a pathway to citizenship,” they wrote.
While it is not unprecedented for a parliamentarian to be overruled, it is rare—though it has occurred as recently as 2013, when Democrats overruled MacDonough to end the filibuster for presidential nominees, according to Governing magazine.
When MacDonough ruled against Democrats’ plans to include a minimum wage increase in a coronavirus relief bill earlier this year, the decision was met with intense disappointment but accepted by most lawmakers. Rep. Ilhan Omar, a Minnesota Democrat, called for the parliamentarian to be replaced.
‘An urgency right now’
Many advocates and Democrats have expressed frustration at a lack of a pathway to citizenship in Build Back Better.
Juliana Macedo do Nascimento, the state and local policy manager for United We Dream, an immigrant advocacy group, said that Democrats have the opportunity to pass bold immigration reform, the most historic in 35 years, by creating a pathway to citizenship.
She added that the Deferred Action for Childhood Arrivals program, of which she is a recipient, is still in the courts and could be eliminated by next year. It is unclear if Democrats will keep their majority in the House and Senate come the 2024 midterm elections.
“There is an urgency right now for Democrats to deliver on citizenship because this is our window,” she said. “We know that our people deserve better, and we were promised a lot more, and Democrats have to deliver on those promises.”
Macedo do Nascimento said she and other immigration advocacy groups were disappointed in what the House passed, because the House does not have the same rule constraints as the Senate and members could have included a pathway to citizenship in their version of the bill.
“We are really disappointed and disheartened by the lack of courage and boldness,” she said. “It doesn’t bode well what will happen in the Senate if the House is so constrained.”
Still, Macedo do Nascimento added that if the Senate accepts the House’s immigration language, it would be the biggest immigration reform in 35 years, since a law signed by the late President Ronald Reagan.
“We have to live with those two truths,” she said. “It’s not enough, and it’s not what we deserve, and it’s not what we were promised.”