Her decision is a blow to Democrats’ plans to create a path to legal residency, and then U.S. citizenship, for as many as 8 million of the 11 million undocumented immigrants in the United States, including many who have lived here for years. The last major legalization was a bipartisan bill signed in 1986 by President Ronald Reagan.
MacDonough had to decide whether giving citizenship to immigrants was primarily a budget matter, enough to merit being included in the proposed $3.5 trillion reconciliation bill, which would require a simple majority to pass the Senate instead of the usual 60-vote threshold. That normal process would require GOP support.
But she found that granting legal residency to millions of immigrants would be a “tremendous and enduring policy change that dwarfs its budgetary impact.”
She warned that such a move would “set a precedent” that could also expose any immigrant to losing their legal status through the same type of legislation.
“That would be a stunning development but a logical outgrowth of permitting this proposed change in reconciliation and is further evidence that the policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation,” she wrote.
Her ruling could foreclose legalizing millions of undocumented immigrants via the budget reconciliation package, which progressive Democrats have said they want to pass together with a bipartisan infrastructure package.
Senate Democrats and advocates for immigrants said Sunday night that they would keep trying to include immigration in the budget plan, and will soon offer alternate ideas to the parliamentarian. Among the proposals circulating in recent weeks would be setting a more recent “registry” date, which currently allows an undocumented immigrant who entered the United States before Jan. 1, 1972, to apply for legal status.
“We are deeply disappointed in this decision but the fight to provide lawful status for immigrants in budget reconciliation continues,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said in a statement late Sunday. “Senate Democrats have prepared alternate proposals and will be holding additional meetings with the Senate parliamentarian in the coming days.”
But Republicans praised the decision late Sunday, saying the U.S. government should not pass an “amnesty” while they are contending with a fresh influx of new undocumented immigrants at the southwest border.
“After decades of failing to enact their amnesty agenda, Democrats tried this latest unprecedented gambit,” Senate Minority Leader Mitch McConnell (R-Ky.) said in a statement. “It was inappropriate and I’m glad it failed.”
Sen. Lindsey O. Graham (R-S.C.) said on Twitter, “It would be a terrible idea to provide legal status before we secure the border and reform the immigration process which is currently being abused.”
The parliamentarian’s decision intensifies pressure on Senate Democrats and the White House to decide whether to follow her advice. Officials did not defy her after she advised against including a minimum-wage hike in a similar spending bill earlier this year.
But millions of immigrants’ futures are at stake, and many fear a future Republican president could renew the crackdowns on illegal immigration that were the hallmark of the Trump administration.
“I still believe this is the year when we can finally accomplish bold, inclusive, and humane immigration reform for millions, and I won’t stop fighting until we do just that,” Sen. Robert Menendez (D-N.J.) said in a statement late Sunday. “ The immigrant community has waited too long and worked too hard for the good of the country, and I won’t take no for an answer.”
Although Senate Democrats are preparing to submit alternate proposals to the parliamentarian, calls intensified late Sunday for Democrats to ignore her recommendation and include a road to citizenship in the budget plan.
Rep. Ilhan Omar (D-Minn.), who had called on the Senate to fire the parliamentarian after the minimum-wage decision, on Sunday tweeted that the White House “can and should ignore” her advice.
“We can’t miss this once in a lifetime opportunity to do the right thing,” she tweeted.
Immigrants gathering in D.C. for a march on Monday also urged Democrats to push forward with their plan for citizenship.
“The parliamentarian is putting us up against the wall,” said Oscar Rodriguez, a 48-year-old truck driver and father of two from Honduras who lives in Queens and has had “temporary protected status” since 1998 because of a major hurricane in his homeland, but he is ineligible to apply for citizenship.
“Schumer knew this could happen. He should do what he has the power to do,” Rodriguez added. “We know she’s the referee. But Schumer has all the power to solve this.”
In the past some critics of the parliamentarians’ rulings have called for them to be fired. But retired parliamentarian Alan Frumin said on Sunday that such a move would be “ridiculous” in this case.
“The parliamentarian simply gives advice and whoever is presiding over the Senate doesn’t have to take that advice,” said Frumin, who retired in 2012 after serving in the parliamentarian’s office for more than 35 years.
Frumin said ignoring the parliamentarian is rare because she interprets the Senate’s own rules and gives the best advice she can offer. The Senate, he said, is her client.
“Her track record is excellent for getting it right,” he said.
MacDonough, who served as an attorney for the government’s immigration enforcement agency before joining the parliamentarian’s office in 1999, expressed sympathy for undocumented immigrants in her more than 1,300-word decision. She noted that they cannot obtain driver’s licenses in many states, pay in-state tuition in state colleges, or even bring their families to the United States. Many are exploited at work, are afraid to seek medical care in this country, and live under the constant fear of being deported.
But she signaled that these are all policy issues — not budget matters.
“The reasons that people risk their lives to come to this country — to escape religious and political persecution, famine, war, unspeakable violence and lack of opportunity in their home countries — cannot be measured in federal dollars,” she wrote.
President Biden has repeatedly called for citizenship for undocumented immigrants and backed the reconciliation plan after bipartisan talks on his citizenship bill failed.
Biden on Friday said he was “confident” that this year the United States would finally allow undocumented immigrants to apply for citizenship, especially immigrants who arrived in the United States as children, those with “temporary protected status” because of wars or disasters in their homelands, farmworkers, and essential workers who he said “carried our country on their backs throughout this pandemic.”
A White House spokesperson called the parliamentarian’s ruling “deeply disappointing but we fully expect our partners in the Senate to come back with alternate immigration-related proposals for the parliamentarian to consider.”
Mike DeBonis and Seung Min Kim contributed to this report.