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Immigrant rights activists protest in Washington, D.C.

Immigration activists rally near the White House on October 7, 2021 in Washington, D.C. (Photo: Kevin Dietsch/Getty Images)

Democrats Urged to 'Grow a Backbone' and Overrule the Parliamentarian on Immigration Reform

"Senate Democrats have the power to deliver on protection for immigrants if they have the courage to lead now."

Jake Johnson

The Senate parliamentarian, an unelected functionary tasked with interpreting the upper chamber's rules, advised Democrats late Thursday to exclude an immigration reform plan from their faltering Build Back Better package—a recommendation that progressives and rights groups said should be readily dismissed.

"Democrats must overrule the parliamentarian to pass immigration reform."

Parliamentarian Elizabeth MacDonough, a former Immigration and Naturalization Services (INS) prosecutor who worked on detention and deportation matters, argued that Democrats' plan to temporarily shield millions of undocumented immigrants from deportation and extend work permits runs afoul of Senate rules that require all provisions of a reconciliation bill to have a direct impact on the federal budget.

While MacDonough's opinion is non-binding—and, according to experts, wrong on the merits—the Senate with few exceptions has adhered to parliamentarian rulings in the past, a trend that progressive lawmakers and immigrant rights advocates said must be broken.

In her capacity as presiding officer of the Senate, Vice President Kamala Harris has the constitutional authority to overrule the parliamentarian, power that the Biden White House refused to wield after the official advised against raising the federal minimum wage to $15 an hour and other Democratic proposals earlier this year.

"The parliamentarian is not an elected official. Their guidance is advisory not law," said Rep. Jamaal Bowman (D-N.Y.), who pointed to the Senate GOP's decision in 2001 to terminate then-Parliamentarian Robert Dove after he issued a pair of recommendations that imperiled the party's tax cuts for the rich, which ultimately became law.

"Democrats must overrule the parliamentarian to pass immigration reform," Bowman added.

Erika Andiola, chief advocacy officer for the Refugee and Immigrant Center for Education and Legal Services, said in a statement late Thursday that "MacDonough's anti-immigrant ruling is a surprise to no one," citing her past as an INS prosecutor.

"Now, we need Democrats to do something they have routinely failed to do under the current administration and the previous Democratic administrations: Grow a backbone and wage a real fight to protect our communities," said Andiola. "Despite the ruling today, Democrats still have numerous avenues and the tools needed to deliver safety to the millions of immigrants living in daily uncertainty. There is no excuse for inaction."

"Senate Democrats have the power to deliver on protection for immigrants if they have the courage to lead now,” Andiola continued. "Senate Majority Leader, Chuck Schumer, and Vice President Kamala Harris can overrule the parliamentarian, fire the parliamentarian, or abolish the filibuster. President Biden can use executive action to protect our communities. There's no excuse."

MacDonough's new advisory opinion represents the third time in recent months that she has deemed immigration reform proposals in violation of the Senate's arcane reconciliation rules, which analysts and lawmakers argue are open to a wide range of interpretations.

"We must pursue all options to deliver a path to citizenship, including for Dreamers and essential workers."

"The parliamentarian's opinion is incorrect on immigration," Sen. Elizabeth Warren (D-Mass.) declared. "There's a clear budgetary impact and years of precedent for immigration policy changes through reconciliation. We must pursue all options to deliver a path to citizenship, including for Dreamers and essential workers."

Despite mounting grassroots pressure, Senate Democratic leaders have not clearly signaled they would support overruling the parliamentarian on immigration or any other matter she is set to offer advice on in the coming days.

In a joint statement Thursday evening, Schumer and Sens. Dick Durbin (D-Ill.), Bob Menendez (D-N.J.), Catherine Cortez Masto (D-Nev.), Ben Ray Luján (D-N.M.), and Alex Padilla (D-Calif.) said that "we strongly disagree with the Senate parliamentarian's interpretation of our immigration proposal, and we will pursue every means to achieve a path to citizenship in the Build Back Better Act."

"Throughout the entire reconciliation process, we have worked to ensure that immigration reform was not treated as an afterthought," the senators said. "The majority of Americans support our efforts to provide legal status for millions of undocumented immigrants in the United States because it would raise wages, create good-paying jobs, enrich our economy, and improve the lives of all Americans."

The parliamentarian's recommendation Thursday was the latest hammer blow that Democrats' flagship reconciliation package suffered this week, most of them inflicted by Sen. Joe Manchin (D-W.Va.), who is attempting to gut the expanded child tax credit and has removed a provision aimed at permanently banning new drilling off the Atlantic and Pacific coasts.

"This is a tragic milestone in the seemingly inevitable dismantling of the Build Back Better Act," Brett Hartl, government affairs director at the Center for Biological Diversity, said of the death of the drilling provision.

That Manchin "wants to poison our coasts while he lives the good life in his landlocked state," Hartl added, "only shows just how out of touch he is with the overwhelming public support for ending offshore drilling."

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