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Democrats eye a creative approach to passing immigration reform

What if Democrats could circumvent a GOP filibuster on immigration by using the budget reconciliation process? The gambit is clearly on the table.


Congressional Democrats and the Biden White House have made no secret of their interest in passing a sweeping immigration reform package. Among the biggest hurdles, of course, is the same obstacle to passing nearly all legislation: Senate Republicans will try to block any reform bill, and coming up with a 60-vote supermajority is practically impossible.

But what if the Democratic majority could circumvent a GOP filibuster by using the budget reconciliation process -- the same method the party used to pass the COVID relief package?

In early April, House Speaker Nancy Pelosi (D-Calif.) suggested Dems are prepared to do exactly that. Two weeks later, a group of Hispanic lawmakers met privately with President Joe Biden, and after the discussion, Rep. Darren Soto (D-Fla.) told Politico that Biden told the group he generally "supports passing certain immigration reforms by reconciliation if we can't get the 10 Republican votes."

Last week, Sen. Patty Murray (D-Wash.), the #3 Democrat in the Senate leadership, raised a few eyebrows with a press release in which she said, "After years of working to reach agreement on a solution, it's clear to me we can't miss the opportunity to act in this critical moment. We need to look at every legislative path possible to get comprehensive immigration reform done -- including through reconciliation."

It's against this backdrop that the New York Times reported overnight that Senate Majority Leader Chuck Schumer (D-N.Y.) is "quietly considering" the procedural gambit.

Mr. Schumer has privately told members of the Congressional Hispanic Caucus in recent weeks that he is "actively exploring" whether it would be possible to attach a broad revision of immigration laws to President Biden's infrastructure plan and pass it through a process known as budget reconciliation, according to two people briefed on his comments.

It's worth emphasizing that this would likely be Plan B for Democratic leaders. Plan A is the ongoing negotiating process underway among a bipartisan group of 15 senators, exploring the possibility of a compromise agreement.

Such a deal appears unlikely. Indeed, the Times' report added that observers have watched the negotiations "drag on with little agreement in sight." There's no great mystery as to why.

Sen. John Cornyn (R-Texas), one of the 15 senators involved in the bipartisan talks, said, "Before we can do anything meaningful on immigration, we're going to have to deal with the current crisis at the border."

If this seems like hollow rhetoric, it's not your imagination. For much of the last two decades, conservative Republicans have said there's a "crisis" that needs to be resolved before GOP lawmakers will consider reform legislation. And every time border security is strengthened, those same Republicans insist it's not enough.

Indeed, let's not forget that GOP members promised then-President Barack Obama that they'd consider a comprehensive immigration solution if he vastly improved border security. The Democrat held up his end of the bargain; the Senate passed the "Gang of Eight" bill; but House Republicans ended up killing the reform effort anyway, offering nothing as an alternative. (See Chapter 6 of my book.)

The GOP position has a Zeno's paradox-like problem: There's no way to ever actually reach the point at which Republicans are satisfied that the "crisis" has been fully resolved. As Greg Sargent noted this morning, "Does anybody imagine there will come a point when Republicans will say, 'Okay, Biden's totally got the border under control now, so let's get serious about working with Democrats on legalizing a lot of immigrants'? Of course not."

But then there's an entirely different question to consider: Is it even procedurally possible to pursue immigration reform through the budget reconciliation process, which is supposed to be limited to matters of taxes and spending? I've been skeptical, but the Times' report included an important detail from 16 years ago that I'd forgotten about:

A team of immigration activists and researchers as well as congressional aides is exploring the question, digging into the best way to present their case to [Senate Parliamentarian Elizabeth MacDonough].... They have found past precedents, including one from 2005, in which changes to immigration policy were allowed as part of a budget-reconciliation package, and they are tallying up the budgetary effects of the immigration proposals — which total in the tens of billions. Researchers have dredged up supportive quotes from Republicans from 2005, when they won signoff for including a measure to recapture unused visas for high-skilled workers in a reconciliation package.

There's no shortage of unanswered questions related to process, politics, and procedure, and it'll take a while before the answers come into focus. But for now, it's clear that Democratic leaders are committed to the effort, and the door to immigration reform is not yet closed. Watch this space.