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Democrats quietly scramble to include immigration provision in social spending bill

Protesters outside the White House on Oct. 7 call for Vice President Harris and Senate Democrats to include immigration reform in their reconciliation package. (Jacquelyn Martin/AP)

Democrats are scrambling intensely behind the scenes to address immigration in the framework they are crafting to expand the nation’s social safety net, according to people with knowledge of the situation, even as President Biden and other party leaders have said little publicly about their strategy in recent weeks.

The most pressing question confronting Democrats is what to do about millions of undocumented immigrants seeking a path to legalization. One option under discussion is a plan to provide protected status that stops short of a path to citizenship. Another, which is seen by some of the people with knowledge of the situation as something of a placeholder, is to include a proposal that would enable immigrants who arrived in the United States before 2010 to apply for a green card.

The talks, which were described by the people with knowledge of the situation, some of whom spoke on the condition of anonymity because they were not authorized to disclose sensitive discussions, are said to remain fluid, with no final resolution yet reached and failure to tackle immigration in the plan still possible.

But the emerging ideas shed light on what has been one of the most divisive issues of Biden’s presidency — and a topic on which Americans have given him low marks. It has also been a subject he has spoken about sparingly in public settings in the context of the negotiations.

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In contrast, Biden and top Democrats have more openly discussed other changes they are making to slim down their $3.5 trillion package, such as how paid family leave and expanding health-care benefits for seniors are likely to be addressed.

President Biden promised a more humane approach to U.S. immigration policy, but his administration has already faced two crises on the U.S.-Mexico border. (Video: Drea Cornejo/The Washington Post)

While the president sent a proposal to Capitol Hill at the start of his tenure to open a path to citizenship for undocumented immigrants, and has voiced support for using the social spending bill to achieve that, he has yet to explain a clear track for accomplishing that objective, angering many activists who have already started accusing him of falling short of his campaign promises.

On Monday, Senate Majority Whip Richard J. Durbin (D-Ill.) said Democrats had made some progress on a proposal to give undocumented immigrants a protected status that would enable them to work legally, pay taxes and live without fear of deportation. He said the Congressional Budget Office gave the plan a preliminary score.

An alternate idea that House Speaker Nancy Pelosi (D-Calif.) and her advisers have told Democratic members and aides in recent days to keep pursuing, according to people with knowledge of the situation, is the one that would enable immigrants who arrived in the United States before 2010 to apply for a green card. Pelosi’s office declined to comment on Monday on internal deliberations.

Several people with knowledge of the situation said Democrats are pursuing this track in case they feel they need to reach an agreement on the larger social spending plan before the Senate parliamentarian rules on the plan Durbin touted. Democrats are under extra pressure to strike a deal since it would also break a logjam on a related infrastructure bill and enable a vote on that measure as soon as this week.

The provision, a fallback known as the “Registry” proposal — which could later be replaced by the idea Durbin touted, should that win approval from the parliamentarian, according to some of the people with knowledge of the situation — would apply to those with provisional immigration status, as well as undocumented immigrants, giving them a track to legalization that activists have demanded for years.

The House Judiciary Committee was instructed a week and a half ago to be ready to have text on this, according to one of the people with knowledge of the situation.

Current law allows an undocumented immigrant who entered the United States before Jan. 1, 1972, to apply for legal status. The new strategy would update the date to clear the way for millions of longtime undocumented immigrants to gain permanent residency.

But the plan faces a major roadblock: The Senate parliamentarian told Democrats that changing the registry date cannot be included under the budgetary maneuver known as reconciliation, according to a document obtained by The Washington Post on Sept. 29. Democrats are using reconciliation to bypass Republican opposition and pass their bill with a simple majority.

The decision marked the second time that Senate Parliamentarian Elizabeth MacDonough had rejected Democrats’ efforts to include permanent legal residency in the bill, judging that its impact would extend well beyond its budgetary implications. Lawful permanent residency, also known as a green card, is the precursor to U.S. citizenship.

There is division among Democrats on whether the parliamentarian’s word is final, with some pushing to override her rule. The White House has not publicly pushed for such a maneuver.

“In order to overrule a parliamentarian, it is not just waving a magic wand,” said White House press secretary Jen Psaki on Oct. 8. “It requires a majority of votes in the Senate, and it requires the vice president. So, I would say that’s a legislative process. I would point to Leader Schumer and others to ask the question of whether there is the opportunity or the appetite to do that.”

White House officials on Monday said the president continues to support a path to citizenship in the reconciliation bill but is deferring to Congress about how to best accomplish that. The White House declined to comment on specific strategies.

Even if it might prove futile, the effort to insert an immigration provision could appease demands made by Reps. Jesús “Chuy” García (D-Ill.), Adriano Espaillat (D-N.Y.) and J. Luis Correa (D-Calif.), who have publicly said they would vote against the reconciliation bill if immigration was not addressed.

Biden, Pelosi and Senate Majority Leader Charles E. Schumer (D-N.Y.) have been leading efforts to try to slim down a $3.5 trillion special spending bill that has stalled over opposition from centrists in the party.

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Sen. Joe Manchin III (D-W.Va.), a key holdout, said Monday that he thinks Democrats can finalize the broad contours of the spending package this week.

“As far as conceptually, we should,” Manchin said.

A deal on the reconciliation plan would also unlock a companion proposal to invest in the nation’s roads, bridges and other public works. That plan has already passed the Senate with bipartisan support, but liberals in the House, backed by Biden, have refused to let it move forward absent an agreement on the social safety net plan.

Other House Democrats have also called for overriding the parliamentarian’s ruling against proposed pathways to citizenship, noting that her decision should be considered more like a recommendation than the final say.

“If immigration were excluded from the Build Back Better bill, it would be devastating. It would cause a tremendous, tremendous uproar in the immigrant community,” García said in an interview last week. “This is a great moment for us to think about putting aside the ruling of the parliamentarian, demonstrating the type of boldness and courage that is required in the moment.”

Democrats are exploring other ways to address immigration in the reconciliation bill, allotting approximately $100 billion to the matter in their blueprint. These include a program to “recapture” unused green cards to help clear the backlog of people waiting for them and change the fee structures for them.

Maria Sacchetti and Tony Romm contributed to this report.