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Major legislative changes to immigration have in modern times typically involved large, bipartisan coalitions. The 1924 immigration act establishing national quotas, 1965’s Hart-Celler Act (which in many ways laid the foundation for the current immigration system), the 1986 amnesty, and the 1990 expansion of legal immigration all got big congressional majorities.
Democrats’ current effort to insert a major immigration-reform component (including a mass amnesty) into the reconciliation bill threatens that tradition. The Senate parliamentarian is due to hear arguments from Republicans and Democrats about including these immigration provisions in reconciliation under the “Byrd rule.” A parliamentarian ruling that sweeping immigration reform could be included in the reconciliation process could permanently transform the dynamics of immigration policy, making it even more polarized and potentially adding to the dysfunction of the immigration system.
Applying the Byrd rule is an arcane process involving a number of variables. Over the summer, Christopher Jacobs argued that most big-ticket immigration policies would fail Byrd-rule tests for reconciliation, and Ramesh Ponnuru specifically doubted the applicability of reconciliation to an amnesty measure. Proponents of using reconciliation for immigration reform have focused on two key tests: whether a provision has an effect on federal expenditures or revenue, and whether that effect is “merely incidental” to the other policy consequences of that provision. They argue that amnesty would have significant fiscal effects and that these effects are not merely incidental.
Despite a recent coordinated effort to tout the fiscal benefits of a “path to citizenship,” much advocacy for amnesty (especially for categories such as people illegally brought to the United States as minors) has not emphasized dollars and cents but instead an ethical obligation to some vision of America. The headline for the immigration page on Joe Biden’s campaign website was “The Biden Plan for Securing Our Values as a Nation of Immigrants” — not “The Biden Plan for Using Immigration to Affect the Federal Balance Sheet.” Proponents of amnesty and expanding legal immigration have portrayed these issues as fundamental questions of American identity, not finances.
By setting a precedent to include an amnesty measure in a reconciliation bill because of its fiscal effects (which are regarded as non-incidental), the parliamentarian could very easily be setting a precedent for making vast changes to immigration policy through reconciliation. For instance, a ten-year moratorium on certain immigration categories could also be eligible for reconciliation under this precedent — after all, severely curtailing legal immigration could also affect the federal budget. Whether or not such a decision would be good policy, the fact that it could be included shows how allowing an amnesty through reconciliation opens up many cans of worms.
And here’s an especially big can: Imagine a Democratic Congress does pass an amnesty through reconciliation, and then Republicans pick up a trifecta by the 2024 elections and use reconciliation to cancel or pause this amnesty in 2025. They might pass a law saying that immigrants who received “permanent resident status on a conditional basis” or some special visa through the 2021 reconciliation act were ineligible to transition to “lawfully admitted for permanent residence” or U.S. citizenship after the passage of the 2025 reconciliation bill. Or they might place a 30-year waiting period for amnestied immigrants to transition to U.S. citizenship. Or they could do a host of other things.
On a policy level, this could lay the groundwork for massive civil disruption and all-out legal warfare. One Congress removing millions of people from a path to citizenship that has been granted by another Congress could ignite a firestorm. Past amnesties have avoided this risk by receiving considerable bipartisan backing, and the filibuster means that any amnesty modification would have to garner 60 votes in the Senate (which practically removes an amnesty reversal from the realm of possibility).
In weighing arguments about including immigration in the reconciliation bill in 2021, the Senate parliamentarian is also making a decision about the future dynamics of U.S. immigration policy. Shoehorning transformative immigration reform through reconciliation in an unprecedented way could further polarize immigration policy.