Recently, Rep. Jesus Garcia, D-Illinois, joined President Biden in political hostage-taking. Garcia claimed he “will support a budget reconciliation package only if it includes provisions to grant a pathway to citizenship to a broad spectrum of the country’s undocumented population.”
Unfortunately for Garcia, procedural concerns—quite apart from whether Democrats have the votes and political will to pass an immigration package on top of up to $6 trillion in spending—make that scenario unlikely to happen.
Problem 1: Incidental Budgetary Impact
Democrats want to use the reconciliation process to ram their priorities through the Senate on a party-line vote. But that process includes procedural strictures, including a six-part test called the “Byrd rule,” designed to preserve the integrity of the legislative filibuster. That rule, named for former Senate Majority Leader Robert Byrd, prohibits the inclusion of “extraneous” material, absent the agreement of 60 senators (the number normally needed to overcome a filibuster) to waive Senate rules and keep the material in the bill.
One of the six-fold tests under the “Byrd rule” applies to a provision that “produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision.” This test, among others, tripped up the minimum wage increase Democrats wanted to add to their “COVID relief” bill earlier this year.
In many respects, immigration replicates the minimum wage debate. In February, the Congressional Budget Office concluded that raising the minimum wage to $15 an hour would have sizable budgetary effects. CBO estimated such an increase would generate a total of $19.7 billion in net new tax revenue over ten years, while increasing the deficit by $54 billion over the same period.
However, CBO also concluded that a minimum wage increase would raise wages by a net of $333 billion over ten years—a much higher amount than the $19.7 billion in net revenue the federal government would receive. The on-budget effects, while large in absolute terms, represented a small portion of the overall policy effects of this change.
Changes to immigration laws would fit into the same category as the minimum wage: They would definitely have a budgetary impact. But regardless of whether one believes immigration changes would increase or decrease the federal deficit, they would have far larger changes on the economy and country as a whole, meaning they would likely fall afoul of this “Byrd rule” test.
Problem 2: Budgetary Effects Across Committees
The minimum wage increase also faced this problem. In that case, the changes in authorizing laws lay within the jurisdiction of the Senate Health, Education, Labor, and Pensions Committee, while most of the fiscal effects came within the purview of the Senate Finance Committee.
Immigration would pose a similar problem. In both the Senate and the House, the Judiciary Committees retain jurisdiction over most elements of the immigration system, while most of the budgetary impacts of any immigration changes—changes in tax revenues and welfare spending—lie within the purview of the Senate Finance Committee.
The reconciliation process is grounded upon giving specific instructions to specific congressional committees—who can alter programs solely within their committee’s jurisdiction—presenting a chicken-and-egg problem on issues like immigration. Giving a reconciliation instruction to the Judiciary Committee regarding immigration would yield little or no budgetary changes to programs within its jurisdiction, making it subject to be stricken under the “Byrd rule.”
Conversely, giving a reconciliation instruction to the Finance Committee would only generate budgetary savings if the committee altered areas of law not within its jurisdiction—also verboten under the “Byrd rule.” Either way, the process makes passing immigration provisions highly unlikely via reconciliation.
Problem 3: Changes to Social Security
The Congressional Budget Act that governs the reconciliation process precludes any legislative provision “that contains recommendations with respect to the old-age, survivors, and disability insurance program established under Title II of the Social Security Act.” Also, unlike the first problem above, in which a “Byrd rule” point of order would mean the offending provision would get stricken from a reconciliation bill absent the votes of 60 senators, a violation of the Social Security point of order, or the committee jurisdiction point of order, would prove fatal to the entire bill.
We know from experience that these procedural concerns can—and have—tripped up bills in the past. Four years ago, House Republicans had to amend their “repeal-and-replace” bill, which they similarly tried to enact via budget reconciliation, at the last minute to avoid falling afoul of the parliamentarian on this issue (as I had predicted).
When first introducing their bill, Republicans wanted to include more stringent citizenship and identity verification provisions for their (revised) subsidy regime than existed in Obamacare. Rep. Kevin Brady, R-Texas, then the chairman of the House Ways and Means Committee, specifically bragged about the stricter eligibility requirements during his committee’s markup.
But in the waning days prior to the House floor vote, Republican leaders had to rewrite their bill. They removed all language creating a new verification regime because that regime—including its implications for Social Security—struck the Senate parliamentarian as potentially violating this “Byrd rule” test (among others).
It quite logically follows that, if creating a citizenship and identity verification regime violated the “Byrd rule” prohibition on changes to Social Security via budget reconciliation, changes to immigration laws—particularly a mass legalization program—would almost certainly violate the same provision. In other words, if Garcia has his way, and immigration changes get attached to a budget reconciliation bill in the House, guidance from the parliamentarian could kill the entire bill in the Senate.
Not Going to Happen
To put it bluntly, Democrats wanting to pass immigration changes via reconciliation find themselves in a procedural box canyon. If lawmakers like Garcia want to make threats to withhold their vote for any bill excluding immigration, they can of course do so. But unless Senate Democrats agree to abolish the filibuster or overrule the parliamentarian—things Sen. Joe Manchin, D-West Virginia, has said he will not do—changing immigration laws via reconciliation seems the longest of long shots.