An immigration reform loophole

A federal judge in Texas awoke a political bear when he ruled on July 16 that former President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) policy is unconstitutional. Judge Andrew Hanen said Obama should not have sidestepped Congress when creating the program. While his decision does not affect current DACA recipients— “Dreamers”— it halts new applications. President Joe Biden called the decision “deeply disappointing” and announced the Justice Department plans to appeal the ruling as all eyes turn to the legislative branch for immigration reform.

Senate Democrats, tired of bills stalling in debates and subcommittees, responded by quickly including new policy initiatives in the upcoming budget reconciliation bill. The reconciliation process requires a simple majority and would bypass the GOP if the Democratic caucus unanimously agrees. (Vice President Kamala Harris would then likely cast the deciding vote.) Senators have not yet fully written the plan, but it is likely to involve dedicating $120 billion to allow Dreamers a pathway to citizenship along with permanent green cards for essential workers, farmworkers, and temporary protected status members. The plan could legalize between 10 million and 20 million people, though numbers are unclear because many immigrants fit into more than one category.

Incorporating immigration reform into budget reconciliation is unlikely to succeed. The Byrd Rule limits reconciliation bills to matters pertaining to spending and taxes. According to the Byrd Rule, if the Senate parliamentarian, Elizabeth MacDonough, decides immigration reform falls outside the budget purview, senators cannot add it later as an amendment. MacDonough was formerly an immigration lawyer, so Democrats hope for her support. They are wary, though: In 2017 she stopped their attempt to include healthcare packages in reconciliation, and earlier this year she blocked a $15 minimum wage stipulation added to coronavirus aid legislation.

If the reconciliation tactic doesn’t work, Democrats will have to negotiate with Republicans to reform immigration policy. One particular sticking point for Republicans is how to define essential workers. Sen. Alex Padilla, D-Calif., introduced the Citizenship for Essential Workers Act in March. The bill would speed up the citizenship process for up to 5 million people who work in healthcare, energy, agriculture, and more. In April, Sen. Elizabeth Warren, D-Mass., added her name to a bicameral letter asking Biden to include the act in his infrastructure plan, arguing that over five million immigrants contribute significantly to national infrastructure.

Samuel Rodriguez, pastor and president of the National Hispanic Christian Leadership Conference, called the Biden administration’s immigration plans too broad and impractical. He considers the reconciliation addition a political tactic to gain votes: “From a practical standpoint when politicians think of millions of immigrants becoming citizens, they are thinking of millions of votes, the vast majority of which will vote for the Democratic Party.”

Rodriguez remembered working with former President George W. Bush on his 2007 attempt to upend United States immigration policy. Rodriguez said Bush’s plan to secure the border and create a merit-based system for future migrants was the best he’s seen. Conservative Republicans blocked Bush’s bill.

Marc Clauson, a professor of history and law at Cedarville University said political forces have kept Congress from coming to an agreement on immigration for almost 40 years: “Republicans don't want to mess with allowing too many people into the country who otherwise would be illegal. The Democrats seem to be more inclined toward letting more people in. Both have constituents telling them not to give in.”

Sen. Lindsey Graham, R-S.C., echoes many Republicans with his worries that granting citizenship to illegal immigrants before securing the border will cause an immigration crisis. In an interview with Fox News, he called adding the issue to reconciliation “the dumbest idea … that will lead to a breakdown of law and order.”

Sen. Dick Durbin, D-Ill. first introduced the Development, Relief, and Education for Alien Minors (DREAM) Act in 2001. The bill would grant citizenship to Dreamers who meet education, security, and language benchmarks. For the past 20 years, it has stalled, joined with other pieces of legislation, and been reworked. In February, Graham co-sponsored the most recent iteration with Durbin but said he would not vote for it until the border is secure. The bill has stalled again in Senate debate.

Biden said the Texas ruling should motivate legislators to advance protection for Dreamers “who have lived too long in fear.” At the beginning of the year, he announced the U.S. Citizenship Act of 2021, which would establish clear citizenship paths for undocumented immigrants. It is still in subcommittee. He has also called on the Senate to move forward with the Democrat-sponsored American Dream and Promise Act, which passed the House in March.

As a pastor, Rodriguez said he cannot support legislation that leaves the border open and provides mass amnesty, but Congress should help the Dreamers: “These are young men and women we're playing politics with. I find that to be morally reprehensible.”