Outrage as Biden Says Fate of Immigration Reform Is 'For the Parliamentarian to Decide'

President Joe Biden said Monday that he would defer to the advice of the Senate parliamentarian regarding whether Democratic lawmakers can approve a pathway to citizenship for undocumented immigrants using budget reconciliation, prompting outrage from immigrant rights advocates who argue that an unelected official should not be allowed to determine the fate of millions of people.

"Are we going to let an unelected person decide on the lives of folks with DACA?"
--Cristina Jimenez

"That's for the parliamentarian to decide, not for Joe Biden to decide," the president told reporters when asked about Democrats' plans to include a pathway to citizenship for Dreamers and others in their forthcoming reconciliation package, which is expected to include trillions of dollars in spending on a range of priorities.

The Senate parliamentarian is tasked with interpreting and advising lawmakers on the chamber's rules and procedures. While typically an obscure figure, incumbent parliamentarian Elizabeth MacDonough attracted fury earlier this year when she ruled that a $15 minimum wage provision could not be included in Democrats' sweeping coronavirus relief package because she viewed it as a violation of the rules governing budget reconciliation.

Specifically, the so-called Byrd Rule requires that all provisions of a reconciliation package have a direct--and not "merely incidental"--impact on the federal budget. MacDonough rejected arguments from Sen. Bernie Sanders (I-Vt.), economists, and policy experts that a federal minimum wage boost complies with the Byrd Rule, and the provision was ultimately stripped from the package.

Progressives fear that proposed changes to the immigration system, as well as other Democratic priorities, could suffer the same outcome--unless Vice President Kamala Harris uses her authority as presiding officer of the Senate to overrule potential unfavorable advice from the Senate parliamentarian, something Harris refused to do during the minimum wage fight.

Senate Majority Leader Chuck Schumer (D-N.Y.) also has the option of firing the parliamentarian, as Republicans did in 2001 when the official hindered their efforts to pass tax cuts for the wealthy.

"Are we going to let an unelected person decide on the lives of folks with DACA?" asked immigrant rights organizer Cristina Jimenez, referring to the Deferred Action for Childhood Arrivals program. "Biden and Congress can protect DACA recipients and undocumented people by delivering citizenship this year."

Robert Cruickshank, campaign director at Demand Progress, emphasized that "the parliamentarian offers advice which the president and the Senate are free to take or reject."

"This is Biden throwing the undocumented under the bus and claiming, wrongly, he has no other choice," Cruickshank tweeted. "Appalling."

Democratic lawmakers are reportedly aiming to include $120 billion in their budget reconciliation package for a pathway to citizenship for DACA recipients, essential workers, farm workers, and people with Temporary Protected Status. Sen. Joe Manchin (D-W.Va.), a key swing vote, has signaled his support for the inclusion of immigration provisions in the reconciliation bill.

"The futures of hundreds of thousands of Dreamers shouldn't be in the hands of an unelected Senate parliamentarian. Let's put it in reconciliation, but end the filibuster either way."
--Sawyer Hackett, People First Future

Protecting DACA recipients with concrete legislative action became all the more urgent after a Republican-appointed federal judge ruled late last week that the program--which has protected hundreds of thousands of young undocumented immigrants from deportation since its inception in 2012--is unlawful.

In response, Biden called the ruling "deeply disappointing" and said the Justice Department "intends to appeal this decision in order to preserve and fortify DACA."

"But only Congress can ensure a permanent solution by granting a path to citizenship for Dreamers that will provide the certainty and stability that these young people need and deserve," the president continued. "I have repeatedly called on Congress to pass the American Dream and Promise Act, and I now renew that call with the greatest urgency. It is my fervent hope that through reconciliation or other means, Congress will finally provide security to all Dreamers, who have lived too long in fear."

With meaningful immigration reform highly unlikely to pass through regular order as long as the 60-vote filibuster remains in place, activists argue that the reconciliation process is the best option for Democrats to overcome Republican obstruction and uphold their commitments to undocumented immigrants.

"The futures of hundreds of thousands of Dreamers shouldn't be in the hands of an unelected Senate parliamentarian," said Sawyer Hackett, executive director of People First Future. "Let's put it in reconciliation, but end the filibuster either way."

In a blog post earlier this month, Philip Wolgin of the Center for American Progress--a think tank aligned with the Democratic establishment--argued that a pathway to citizenship meets the requirements of budget reconciliation.

"On both the budgetary effect and the 'merely incidental' test, legalization qualifies," Wolgin wrote. "Even with the big economic gains that accrue over time, in the immediate, legalization increases costs to the federal government, mainly as new green card holders become eligible for benefits and services."

"The inclusion of a path to citizenship in the budget reconciliation process--as Congress considers all avenues for legalization--is an important, viable, and economically robust way forward," he added.