Amid Historic Border Crisis, Senate Clears Path for Mass Amnesty
Throughout the summer, FAIR warned that Senate Democrats planned to use an arcane legislative process known as budget reconciliation to amnesty millions of illegal aliens at the worst possible time. Those plans turned into action in the middle of the night last week, despite a border crisis that has spiraled out of control with implications for the health and security of Americans.
In the early hours of August 11, the Senate approved the Democrats' $3.5 trillion budget resolution with instructions to the Judiciary Committee to add amnesty for an estimated 10 million illegal aliens to its final budget reconciliation bill. Majority Leader Chuck Schumer has instructed committees to complete their pieces of the bill by September 15.
As a reminder, budget reconciliation is a specific procedure that makes budget-related legislation easier to pass in the Senate. Instead of needing 60 votes, a reconciliation bill only needs a simple majority. It starts with a budget resolution, which the filibuster cannot stall. In fact, it does not even require President Joe Biden’s signature. However, the Senate can only use this process once every fiscal year. Like the budget, the minority party cannot filibuster it, and only needs a simple majority to pass.
During consideration of the resolution, which spanned hours of intense debate, Republican senators offered a number of immigration-related amendments.
Senator Chuck Grassley (R-Iowa) introduced an amendment that would bar illegal aliens with criminal records from qualifying for Democrats’ proposed amnesty. Incredibly, every Democratic senator voted against Senator Grassley’s common-sense amendment.
Senator Ted Cruz (R-Texas) introduced an amendment strengthening the Title 42 policy currently in place at the border which allows Border Patrol agents to quickly expel single adult aliens from the U.S. in an effort to prevent the ongoing spread of the COVID-19 virus. Just as they did with Senator Grassley’s amendment, all Senate Democrats voted against Senator Cruz’s proposal.
The two parties did find rare overwhelming consensus on one immigration amendment offered by Senator Roger Marshall (R-Kan.), which would ban the federal government from releasing COVID-positive illegal aliens into the interior of the United States. The vote passed by a vote of 88-11, with only a handful of Democratic senators voting against Senator Marshall’s amendment.
All eyes are now on the House, which will return to Washington next Monday to begin consideration of the Senate-passed budget resolution. A handful of vulnerable Democrats are already flexing their political muscle due to the chamber’s narrow margin, raising concerns about the contents of the resolution, ramping up pressure on Speaker Nancy Pelosi to vote first on the bipartisan infrastructure bill. Some of those in the toughest 2022 races, like Reps. Stephanie Murphy (D-Fla.), Josh Gottheimer (D-N.J.), and Elissa Slotkin (D-Mich.), just did this publicly in a letter. However, leadership continues to largely ignore them. Majority Whip Steny Hoyer announced that only the budget resolution — and not the bipartisan infrastructure legislation — would be on lawmakers’ schedules when they return from recess the week of August 23, but things are still in flux.
If the House ends up passing the resolution and an amnesty-laden $3.5 trillion budget reconciliation bill is finally drafted, the inclusion of amnesty depends entirely on a ruling by the Senate Parliamentarian. Under the Senate’s Byrd rule, policy changes made through the reconciliation process must have a direct effect on spending and revenue, and cannot simply disguise policy changes unrelated or merely incidental to the federal budget. For example, in a previous reconciliation battle dealing with COVID-19 stimulus funding, the parliamentarian ruled that a provision raising the federal minimum wage to $15 an hour violated the Byrd rule.
The parliamentarian will rule on various policy implications in this round of reconciliation, including on immigration. The current parliamentarian, Elizabeth MacDonough, is a former immigration attorney who worked for the Justice Department. She could rule that the citizenship giveaway to millions of illegal aliens is not germane to the federal budget, and strip it from the final bill.
On the other hand, she could accept the Democrats’ argument that amnestying millions of illegal aliens would impact the federal budget in such a way that it merits inclusion. We simply will not know until late September or early October.
This much is clear: the reconciliation push represents the biggest potential for an amnesty since the 2013 Gang of Eight bill. If the parliamentarian rules positively on its inclusion, and Democrats keep their razor-thin majorities in the Senate and House together, then tens of millions of illegal aliens would be put on a path to citizenship without a single vote from the minority party. The stakes could not be any higher.
Granting amnesty to millions of illegal aliens would exacerbate the raging border crisis and deeply harm our nation for decades. It would set a terrible precedent and an opportunity for the party in power to get around the traditional legislative process to enact unpopular special interest priorities unrelated to spending or revenue. We must stop it.
Stay tuned to FAIR for ways you can make your voice heard in the coming weeks.