There’s a strong case Congress should give legal status to millions of immigrants who are here illegally, at least under certain conditions. There’s a case, reasonable though not as strong, that we ought to have legislative rules that allow a bare majority of Congress to make that change in our laws.
There is, by contrast, no real case that the rules in place today allow it.
If Democrats try to enact an amnesty that way, they will probably, and rightly, get shot down – but not before doing a bit more damage to public confidence in our political system.
The gambit some Democrats are considering would put a broad amnesty in a “budget reconciliation” bill that cannot be filibustered. If all Democrats voted for the bill and all Republicans against it, it would pass the Senate on a 51-50 vote with Vice President Kamala Harris breaking the tie.
The argument for trying this maneuver has three parts: It would meet the technical requirements for inclusion in a reconciliation bill, there is precedent for it, and it would be popular. None is persuasive.
Reconciliation rules forbid including provisions that have a “merely incidental” effect on the budget. The rule is in place to keep the majority party from being able to cripple the minority’s right to filibuster: The majority can’t use a procedure designed to let budgets pass in order to get everything else it wants with 51 votes, too.
Supporters of an amnesty claim it would yield as much as $39 billion in new tax revenue. But even if we took that number at face value, extra revenue is obviously not the main point of amnesty.
Raising the minimum wage to $15 an hour would have an even larger effect on the budget, according to the Congressional Budget Office, but everyone knows nobody who favors that policy does so because of that effect. The Senate parliamentarian, as a result, ruled the increase could not be included in a reconciliation bill.
The supposed precedent for pursuing a bare-majority strategy now is that in 2005, the Senate passed a reconciliation bill that included provisions about immigration. But the parliamentarian never ruled then on whether a reconciliation bill could include immigration provisions. Neither party even asked for it.
The purpose of the rule keeping extraneous items out of the budget, remember, is to stop the Senate majority from cutting out a minority that objects. What happened in 2005 was consistent with that goal. If the minority does not mind some provisions enough to object to them, they can be included without harm to its prerogatives.
A large amnesty would be entirely different. Nearly all Republicans would object to it, at least if it were not coupled with other immigration reforms.
A conscientious parliamentarian would have to sustain that objection and rule this change has to be accomplished, if at all, outside the expedited budget process. If the Senate is going to keep the filibuster, an amnesty has to be subject to it.
Supporters of an amnesty keep trying to find a shortcut to getting their way that doesn’t require building a broad legislative consensus and deal-making. They say the opposition is too obdurate for the kind of lawmaking we used to consider normal.
Thus President Barack Obama instituted quasi-amnesties by fiat, rationalizing the moves by saying Congress had failed to act. Those amnesties have been ricocheting around the courts ever since.
It may be, however, Obama got the story backward, and the search for shortcuts is itself making consensus harder to create. His actions, by removing amnesty from the legislative process, hardened positions on both sides.
The advocates, having seen their policy implemented by the stroke of the president’s pen, had no reason to make concessions to the doubters. With no concessions in prospect, the opponents had no incentive to do anything but attack the president’s edicts.
Enacting an amnesty by the skinniest possible majority and breaking the rules to do it could have an even more poisonous effect. Even today, senators probably have enough good sense to keep this prospect a flight of op-ed fancy. That it is being entertained at all is one more sign of the decay of our political system.
Bloomberg