Democrats’ New Amnesty Gambit

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Senate Majority Leader Chuck Schumer (D-NY) holds a news conference at the U.S. Capitol in Washington, D.C., March 16, 2021. (Kevin Dietsch/Pool via Reuters)

If a $3.5 trillion reconciliation bill isn’t bad enough, how about a $3.5 trillion reconciliation bill that tortures the Senate rules to include a highly contentious, consequential policy change that wouldn’t have a prayer of passing otherwise?

That’s the idea Democrats are pursuing to force through a large-scale amnesty for illegal immigrants.


Reconciliation, of course, is the process that allows budget bills to pass the Senate with 51 votes, rather than the 60 required to end filibusters and pass other legislation. There are well-established guardrails for reconciliation, the so-called Byrd rule, to keep it from becoming an end-run around the filibuster for whatever a Senate majority wants to pass.

Among other things, the Byrd rule, which is written into statute, says that provisions that don’t have a budgetary impact or merely have an incidental budgetary impact can’t be included in reconciliation. “A provision shall be considered extraneous,” it says, “if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision.”

This obviously should rule out the kind of amnesty Democrats are talking about, which would cover “Dreamers,” those eligible for Temporary Protected Status, and “essential workers.” Democrats have advocated a pathway to citizenship for illegal immigrants for decades now, but never have they said that we must create one primarily as a budgetary matter — as if the status of illegal immigrants is a question comparable to the level of Medicare hospital reimbursements or unemployment benefits.

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An amnesty for illegal immigrants does indeed have a fiscal impact — a negative one — but that isn’t what makes it so contentious. People aren’t dollar signs, and granting a large-scale amnesty would have far-reaching consequences for the rule of law and the future flow of both legal and illegal immigrants.

In the unlikely event that the Senate parliamentarian approves this maneuver, the position of parliamentarian might as well be abolished since it will no longer serve any purpose.

Senator Joe Manchin has made favorable sounds about including an amnesty in reconciliation, although it’s not always easy figuring out what his stray comments to reporters in the hallways of the Capitol are really supposed to mean. As a supporter of the filibuster and an advocate of bipartisanship, it makes no sense for him to favor abusing the Senate rules to bypass the filibuster to force through a momentous change — more momentous than spending several-hundred billion more on infrastructure — on a party-line vote.


If the amnesty-via-reconciliation would be a bad process, it would also be terrible on the merits. At least previous so-called comprehensive immigration bills made a show of emphasizing enforcement as the trade-off for an amnesty, whereas Democrats now want only amnesty. It would flash another green light to would-be migrants to come here illegally, and, when illegal immigrants get green cards, they can begin to bring in relatives.

Democrats aren’t in a mood to care about any of this — they think, for some reason, that President Biden has a far-reaching mandate to enact a transformative agenda. If this were remotely true, they wouldn’t need to come up with ridiculous schemes to get around the fact that they have the slenderest possible Senate majority and there is no groundswell for them to use it to work their will on culturally fraught issues.


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