Fate of citizenship for ‘Dreamers’ currently rests with the Senate parliamentarian

The fate of a pathway to citizenship for millions of immigrants is in the hands of a key Senate staffer who is expected to decide in the coming weeks whether the policy can be included in the Democrats’ upcoming $3.5-trillion social spending package.

Democrats hope to enact a pathway to citizenship for “Dreamers,” or participants in the Deferred Action for Childhood Arrivals program, who were brought to the U.S. illegally as children. A citizenship pathway would also be offered to three other groups: people with temporary protected status, farmworkers and essential workers.

As many as 8 million people currently in the country could benefit from the proposal, if it is included, delivering the biggest victory for immigration advocates in decades after years of fits and starts in Washington on comprehensive reform.

But because Democrats plan to pass their package by using a special reconciliation process, the immigration policy can be included only if it conforms to a special set of Senate rules and can be shown to be directly related to the federal budget. Democrats are using the reconciliation process because it enables them to circumvent a GOP filibuster.

The Senate’s parliamentarian, an unelected staffer appointed to the nonpartisan position, is tasked with making that call. Elizabeth MacDonough, appointed by former Senate Majority Leader Harry Reid (D-Nev.), is the current parliamentarian.

Democratic and Republican aides met with her behind closed doors Friday to begin to make their case. She did not announce a decision on whether to include the policy and asked for answers to follow-up questions, according to people familiar with the process. It is unknown whether a final decision will be reached before Monday, when the House Judiciary Committee will consider the immigration provisions in the bill.

“I am excited and a little bit nervous, I must admit,” Rep. Jesús “Chuy” Garcia (D-Ill.) said on a conference call with the American Business Immigration Coalition on Friday, “because today we will get the first sign of how we may fare in the coming days and weeks.”

Garcia said earlier this year that he wouldn’t support a reconciliation bill without a pathway to citizenship.

The effort to legalize a pathway to citizenship comes as the legal battle over Dreamers has intensified. The Biden administration appealed a Texas court ruling that found the DACA program unlawful. The appeal was filed in the conservative 5th Circuit Court of Appeals.

Democrats are cautiously optimistic that if the parliamentarian were to rule that the immigration provision can be included — a decision that even some Democrats consider a long shot — they would have the votes to enact it.

Sen. Richard J. Durbin of Illinois, who counts votes for Senate Democrats, would say last month only that he’s talked to “most” Democrats about supporting the provision.

“They understand it. Certainly [Majority Leader Charles E.] Schumer feels as I do that we should include it,” he said. But, “whatever we put in has to pass the parliamentarian’s test.”

Democrats argue that the policy conforms to the rules. They say it’s a budgetary issue because providing citizenship would cost the government about $140 billion over 10 years, according to initial estimates, because new U.S. citizens would be eligible for benefits, such as Medicaid, the Children’s Health Insurance Program and the Affordable Care Act.

“Today’s review of the inclusion of immigration reform in the reconciliation bill by the parliamentarian is just an important step in the process to finally bring justice to immigrant communities across America,” said Sergio Gonzales, executive director of the advocacy group the Immigration Hub. “We are confident that Democratic leaders are prepared to move us forward and will use every tool at their disposal to do so.”

The liberal Center for American Progress estimates citizenship would be a boon to the economy, adding about $1.5 trillion to the nation’s gross domestic product over a decade. The group says the path to citizenship would also result in higher wages for all Americans and the creation of 400,000 new jobs.

Democrats also argue that they have precedent on their side, pointing to a 2005 parliamentarian’s ruling that adding new green card holders could be allowed in a similar kind of bill. At that time, the Senate was controlled by Republicans.

Republican aides are expected to argue the budgetary impact of adding millions of new citizens is merely incidental and that such sizable policy changes aren’t allowed in reconciliation.

Immigration advocates are already working on backup proposals in case the parliamentarian doesn’t agree with their initial arguments, according to people involved in the discussions.

Based on the parliamentarian’s indications Friday, “they’re going to be really trying to figure out if there’s objections, what are the objections and how to work around them,” said Frank Sharry, executive director of the advocacy group America’s Voice.

If MacDonough rejects the pathway to citizenship for the four groups of immigrants, proponents say they will try to win approval for an alternative proposal that would change existing law to make more people eligible for a green card. The policy relies on the existing registry, an obscure part of immigration law that allows certain people who have been present in the United States since Jan. 1, 1972, with eligibility to apply for a green card even if they are in the country unlawfully.

Under this plan, that date would be changed to something much more recent, with some people pointing to a likely date of 2011, according to people involved in the discussions. The date will be constrained by the total amount of money that can be spent on immigration policy in the reconciliation bill.

This plan — which MacDonough would still need to approve — would probably not cover as many people, particularly farmworkers and essential workers who arrived in the country in recent years.

The Senate doesn’t have to follow the parliamentarian’s rulings. But it would be a dramatic break in precedent to defy them.

Many House Democrats, already frustrated by the Senate’s filibuster rules, are eager to see their counterparts overrule or ignore the parliamentarian. But most Senate Democrats haven’t taken up the cause.

MacDonough has frustrated Democrats before. In February, she ruled that implementing a $15 minimum wage could not be included as part of Democrats’ COVID-19 relief bill.