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Senate Rules Didn’t Dash Dems’ Mass Amnesty, They Did (But Amnesty Might Still Survive)

Chuck Schumer and Nancy Pelosi give a joint speech during a government shutdown.

The Senate’s parliamentarian appeared to dash Democrats’ mass amnesty dreams Sunday, issuing an opinion that the rules for a budget reconciliation bill — a privileged legislative vehicle that can be passed with a simple majority — don’t encompass providing permanent legal status to millions of illegal migrants.

Democratic leadership claimed they “are deeply disappointed,” but they know decision doesn’t matter, at least not as much as they’d like to pretend.

Why not? At the moment, they don’t have the votes for it regardless, but would love to blame the decision for their inability to push the whole conference behind a left-wing immigration overhaul.

That, however, doesn’t mean they won’t get anything at all for their efforts: The parliamentarian left the door wide open for more than a few left-wing wins on the immigration front.

The Votes

The office of the Senate’s parliamentarian generally flies under the radar. That is, until one party needs to blame them or use them as a handy foil for why something can’t be done. It’s cynical, but also cyclical: Both parties use the parliamentarian as a cudgel or a shield, depending on the circumstances.

In this instance, the Democrats are using Elizabeth MacDonough, the parliamentarian, to obscure the fact that they very likely don’t have the votes to pass this kind of amnesty. They have neither the 51 votes necessary to pass it in reconciliation, nor the 60 votes to waive the Byrd rule and add it to the bill (nor the 60 votes to overcome a filibuster as part of the Senate’s routine legislative process).

Rather than reveal that to their voters in the form of an actual vote and putting vulnerable Democratic senators in the uncomfortable position of actually voting for controversial measures in public, it’s far easier to feign helplessness and blame MacDonough. “Our hands are tied!”

Republicans pleaded the same impotency to conservative members and their voters in 2017, claiming the parliamentarian wouldn’t let them use an Obamacare repeal attempt to stop federal subsidies from going toward buying plans that pay for abortion or to cut Planned Parenthood funding for even a single year.

In that fight, the parliamentarian’s office hadn’t even issued an opinion; all conservatives were offered were reassurances from House and Senate leadership that it wouldn’t be allowed. It wasn’t until a handful of conservative senators pressed the issue with the parliamentarian herself that the excuse was revealed as a canard.

“What I understood her to be saying is that there’s no reason why an Obamacare repeal bill necessarily could not have provisions repealing the health insurance regulations,” Sen. Mike Lee reported after meeting with MacDonough. Moreover, according to Lee, she’d never even been asked the question.

Democrats’ Go-Around

The most recent plan the parliamentarian turned down would have given green cards to children whose parents brought them here (Democrats and corporate media call them “Dreamers”), refugees the United States granted temporary legal residency to (“Temporary Protected Status), and farm workers, as well as those called “essential.”

The sweeping change would grant permanent status to an estimated 8 million people at a cost estimated at $140 billion, according to the Congressional Budget Office.

The parliamentarian does have a role here, and that is to give her best interpretation of the Senate’s rules and precedents as they apply in various parliamentary scenarios. Reconciliation is governed by the Byrd rule, which is itself a congressional procedure, but one with the unusual status of being enshrined both in the Senate’s rules and in statute itself, meaning unlike all other Senate rules, it is a matter of law. And the rule itself is straightforward: The provisions contained in reconciliation bills must be explicitly budgetary in nature.

The Senate parliamentarian’s decision specifically cited the rule’s demand that reconciliation bills “not produce a change in outlays or revenues.” The bill and its associated cost, MacDonough said, are “by any standard a broad, new immigration policy,” and constituted “a policy change that substantially outweighs the budgetary impact of that change.”

So what’s next? Some options Democrats have include federal benefits for illegal immigrants with a “sunset” of, say, a decade. Why put “sunset” in quotation marks? Because when it comes to an end, gutless Republicans will be loathe to face sob media stories of illegal foreigners the American taxpayer is somehow now morally obligated to pay for.

That’s far from the only option Democrats have — less than $140 billion is a large window of opportunity — but it’s an example of how they might move toward compromise with more moderate senators while assuring their left-flank they have no choice.

If all of that seems dense or difficult to follow, that’s by design. Behind all the run-around lie two simple truths: Democrats don’t have the votes for this version of amnesty, but might if they water it down.

A rule to carry with you in Washington is nearly everything someone in power claims is too complicated to explain actually isn’t complicated at all. They just don’t want to tell you why.