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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Monday, December 20, 2021

Democrats mull hardball tactics to leapfrog parliamentarian on immigration


Senate Democrats are mulling a long-shot bid to get immigration reform to President Biden's desk as they struggle to make good on years of campaign promises. 

The guidance from parliamentarian Elizabeth MacDonough, who this week rejected Democrats' third immigration proposal, is fueling conversations within the Senate Democratic caucus about trying to circumvent the nonpartisan, unelected Senate referee.

Democrats haven't landed on a strategy for how to get immigration legislation into Biden's massive climate and social spending package, which is in limbo until at least January. But they are leaving the door open to either trying to override MacDonough's guidance, which is nonbinding, or leapfrogging her on the Senate floor altogether.

"Every tool that exists, whether it's legislative or procedural, should be kept on the table. ... We need to pursue every option," Sen. Ben Ray Luján (D-N.M.) said.

Sen. Bob Menendez (D-N.J.), who has been involved in the negotiations, said they were “considering all the options legislatively, procedurally, administratively, so we’ll see.”

Luján and Menendez issued a statement with Sens. Catherine Cortez Masto (D-Nev.) and Alex Padilla (D-Calif.) — backed by Senate Majority Leader Charles Schumer (N.Y.) and Sen. Dick Durbin (Ill.), the No. 1 and No. 2 Senate Democrats, respectively — in which they vowed to "pursue every means to achieve a path to citizenship in the Build Back Better Act."

Asked if Democrats would try to formally vote to overrule MacDonough or place someone in the chair who would ignore her guidance, which she frequently speaks to the senator presiding over the Senate, Durbin leaned in, saying that the statement "speaks for itself." 

And a leadership aide stressed that Democrats were serious about looking at "any means necessary" when asked if Schumer would support overruling the parliamentarian or disregarding her advice.

Democrats' latest immigration proposal — which would have granted temporary immigration parole without a path to citizenship to about 6.5 million people — is the latest victim of MacDonough's guidance. Democrats previously pitched her on two plans that would have provided citizenship to up to 8 million immigrants, but she rejected both. 

Democrats also stripped a plan to provide a $15 per hour minimum wage out of a coronavirus relief bill rather than confront her guidance that it didn't comply with the strict budget rules that govern what can be in the bill because Democrats are using reconciliation to bypass the 60-vote legislative filibuster. 

But her latest immigration ruling has sparked fierce pushback from Senate Democrats, adding new momentum to trying to challenge her guidance on the floor or set it aside altogether. 

"The parliamentarian was wrong, as a matter of law. The reconciliation bill has included immigration provisions multiple times in the past, and this bill clearly met the threshold of budgetary impact. ... We're keeping all options on the table," said Sen. Elizabeth Warren (D-Mass.).  

Sen. Mazie Hirono (D-Hawaii) added that Democrats should keep "all options" on the table. 

"The protection of millions of undocumented immigrants cannot be halted due to the advice of 1 person," she tweeted. 

Immigration advocates have pointed to statements from previous parliamentarians Bob Dove and Alan Frumin to bolster their case for Democrats to circumvent or otherwise ignore MacDonough's advice.

And Democrats are facing intense pressure from both House Democrats and immigration reform groups, which have plunged deep into the minutiae of Senate procedure to propose paths to include immigration in the bill.

“I think the House members — the Hispanic Caucus in the House — will find it tough to vote on it,” Menendez said, asked if the bill could struggle to pass without immigration reform. 

Three House members — Reps. Lou Correa (D-Calif.), Adriano Espaillat (D-N.Y.) and Jesús García (D-Ill.) — were key in keeping immigration provisions in the House-passed version of the bill by initially threatening to vote against it if the provisions were removed.

And Padilla on Friday said the legislation will have “a hard time passing the Senate if there’s not something on immigration,” according to a report by Bloomberg.

Immigrant rights advocates say they're exhausted with Senate procedure, which many see as an unnecessary obstacle to significant legislation.

"This is a helluva way to run a democracy. An unelected staff attorney in a supposedly non-political role makes yet another political decision to thwart the freedom and futures of millions of undocumented immigrants," said Frank Sharry, executive director of America's Voice, a progressive immigrant advocacy organization.

A coalition of advocacy groups even started a campaign called "Disregard the Parliamentarian" as a sort of clearinghouse of legal, historical and advocacy resources supporting their proposal.

Other advocates are concerned that Democrats are alienating immigrant activists who have been key volunteers and staffers on recent winning campaigns for the party.

"It's going to be a really challenging road if Democrats don't deliver and step up to the plate," said Yaritza Mendez, co-director of organizing at Make the Road New York, a grassroots immigrant group that has campaigned for Democrats.

But the immigration fight has turned into a microcosm of the larger struggles to pass the Build Back Better bill, which is sputtering as Schumer tries to wrangle the priorities of all 50 members of his caucus. 

Trying to play hardball with the Senate parliamentarian risks antagonizing moderate senators Schumer has spent months trying to sway into voting for the legislation. 

Democrats could try to formally overrule the parliamentarian with a simple majority on the Senate floor, but that would likely fall short. 

Instead of trying to formally overrule MacDonough, some activists are instead urging Democrats to put someone, likely Vice President Harris, in the chair to preside over the Senate and disregard the guidance that found that Democrats’ immigration plan violates the budget rules governing what can be in the spending bill. 

Some advocates prefer that strategy because they believe it would then require 60 senators to vote that the immigration plan violates the budget rules. 

But that as well could risk backlash from a broader band of centrist-minded senators or longtime institutionalists. 

“I don’t think we would ever get 50 votes. ... It’s more the substance of the issue. That’s a pretty dramatic change,” said Sen. Ben Cardin (D-Md.).

Cardin warned that a “direct attack with the parliamentarian” would fall short but predicted that Democrats will “find a way” to get immigration reform done. 

Sen. Joe Manchin (D-W.Va.) has repeatedly vowed that he won’t overrule the Senate referee, saying, “You stick with the parliamentarian ... on every issue. You can’t pick and choose.”

Sen. Kyrsten Sinema (D-Ariz.) has also signaled that she supports the parliamentarian, saying earlier this year, “There is no instance in which I would overrule a parliamentarian’s decision.” 

A spokesman for Sinema said on Friday that she supports comprehensive immigration reform and is “reviewing and discussing the latest ruling on the budget reconciliation package with the Senate Parliamentarian and her Senate colleagues.” 

Several Democrats haven’t yet committed to challenging the parliamentarian. 

Sen. Mark Kelly (D-Ariz.) said that he was open to “options” but didn’t specify if that meant he was open to trying to overturn or sidestep the parliamentarian. 

Sen. Patrick Leahy (Vt.), the most senior Senate Democrat, said his colleagues hadn’t brought up the hardball tactics with him — “nobody has said anything to me about that” — and then railed against Republicans for not taking up immigration reform in the past. 

“I wanna do an immigration package. I remember when I had an immigration bill. ... We got almost 70 votes here in the Senate,” Leahy said, noting that House Republicans wouldn’t bring it up because of an informal rule named after former Rep. Dennis Hastert (R-Ill.) requiring that bills have a majority support of the majority. 

“Now, a couple of years later,” he said, “when Dennis Hastert was in prison they might have felt differently.”

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