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Why an obscure Senate official blocked part of the Build Back Better plan

The Senate parliamentarian has thrown a wrench into the Democrats' Build Back Better agenda, but the fight isn't over just yet.

Because the legislative process in Congress is effectively broken, lawmakers search in desperation for ways to advance key priorities. This is clearly the case with the White House's Build Back Better agenda, in which Democrats are scrambling to pack all kinds of priorities into a reconciliation bill, confident in the knowledge that there's no other way to actually pass bills.

The New York Times reported over the weekend, "No president has ever packed as much of his agenda, domestic and foreign, into a single piece of legislation as President Biden has with the $3.5 trillion spending plan that Democrats are trying to wrangle through Congress."

There's no shortage of challenges associated with such a strategy, including procedural hurdles: The whole point of the pending legislation is to circumvent a Republican filibuster by taking full advantage of the budget reconciliation process, but that process can only be used for policies related to taxes and spending. Democrats nevertheless hoped to use the bill to create a pathway to citizenship for undocumented immigrants.

As The New York Times reported overnight, that's not going well.

Elizabeth MacDonough, the Senate parliamentarian, who serves as the chamber's arbiter of its own rules, wrote that the "policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation," according to a copy of her decision obtained by The New York Times.

This comes roughly seven months after MacDonough also blocked efforts to pass a minimum-wage increase through the reconciliation process.

In theory, Democrats could still pursue their pathway-to-citizenship goals through a separate bill, but such a proposal would inevitably fail in the Senate at the hands of a Republican filibuster, despite majority support in both chambers.

To be sure, the parliamentarian's conclusion, which is colloquially known as a "ruling," is not necessarily binding. MacDonough's role is to mediate procedural disputes, but Senate Democrats have the power to reject her guidance and overrule her decision. They also have the power to fire the Senate parliamentarian and choose someone more to their liking – a step Republicans threatened to take 20 years ago.

But such political hardball would require unanimity among the Democratic conference, which clearly does not exist. For some Senate Democrats, MacDonough's conclusions are the final word on the subject, and her findings related to immigration effectively remove the provisions from the pending legislation.

So what happens now? Senate Majority Leader Chuck Schumer issued a written statement last night, expressing "deep disappointment" with MacDonough's decision. The New York Democrat added, however, "[T]he fight to provide lawful status for immigrants in budget reconciliation continues. Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days."

Other Democratic senators, including California's Alex Padilla and Senate Majority Whip Dick Durbin of Illinois, also issued a joint statement saying they had prepared "an alternative proposal for the parliamentarian's consideration in the coming days."

In other words, MacDonough was unpersuaded by the Democrats' first draft, but she might reconsider after seeing some revised plans, especially now that Democrats have a better sense of how she arrived at yesterday's decision.

And while time will tell whether these edits will ultimately meet with the parliamentarian's approval, it's becoming increasingly likely that key elements of the Build Back Better agenda are slowly being cast aside. Provisions related to the climate crisis are under threat from West Virginia Sen. Joe Manchin; provisions related to reducing the costs of prescription medication are under threat from centrist Democrats who are a little too cozy with the pharmaceutical industry; provisions related to taxes are under threat from other centrist Democrats with wealthy constituents; and now provisions related to immigration are in trouble, too.

The fight isn't over, but the odds of success for the ambitious plan are getting longer.