It's a massive gamble for a party that has been promising to deliver on immigration reform for more than a decade, but key advocates argue it is the last hope -- potentially in this Congress -- for anything to pass.
Democrats are looking to set aside $120 billion for a pathway to citizenship for recipients of the Deferred Action for Childhood Arrivals program, farm workers, essential workers and people with Temporary Protected Status, according to a source familiar with negotiations. But deciding who specifically will qualify for those protections is still a work in progress, sources say. The biggest question is whether Senate parliamentarian Elizabeth MacDonough would allow immigration provisions to be included under the special budget process known as reconciliation at all. MacDonough is responsible for advising the chamber on how its rules, protocols and precedents operate.
Under the rules of reconciliation, lawmakers can only include provisions that have a real impact on the country's overall budget. That means everything must either raise revenue or add to the deficit and that impact cannot be merely "incidental." It's an untested question whether immigration reform will meet that criteria. But, Democrats are arguing this is the best opportunity to try. On Wednesday, President Joe Biden told Democrats during their caucus lunch that he stood firmly behind that plan.
"I understand arguments are made that there are budgetary effects when you change immigration law," said former Senate parliamentarian Alan Frumin. "But I think there's probably a strong argument that those effects are secondary ... (Democrats') purpose is immigration policy. And they would have to make an argument that the budgetary components are not incidental to the change in policy."
The months ahead will force Democrats to decide how hard they want to push the issue. Sen. Bob Menendez, a Democrat from New Jersey, and an original co-sponsor of the bipartisan immigration bill from 2013, has been working with leadership to try and make the language as inclusive as possible. Ultimately, it will be up to Majority Whip and Senate Judiciary Committee Chairman Dick Durbin to write the language.
The effort signals the likely end to a months-long negotiation with Republicans over immigration. Those talks, which centered around providing legalization for DACA recipients and agricultural workers, failed to yield an outcome. But Republicans warn that if Democrats go down the path of forcing immigration through reconciliation, they will likely be unable to find willing negotiating partners if they fail.
"It's a terrible way to do business," Sen. Marco Rubio, a Republican from Florida, told CNN.
Sen. John Cornyn, a Republican from Texas who has been a key negotiator in bipartisan immigration talks, also told CNN he's "not optimistic" about a possible deal down the line.
He warned that Democrats are going to have a rude awakening that it's "very difficult" procedurally to include immigration provisions in a reconciliation bill.
"You got to be careful what you ask for around here because they're going to own it. And that's a very challenging issue," added Cornyn of immigration reform. "There's a reason we haven't been able to deal with it most of the time since I've been here in Congress. So, if they decide to do it that way, then they'll own it."
The effort to include immigration could also be a tough issue for Democrats running for reelection. The topic has become a lightning rod on the right and forcing the legislation through a partisan process like reconciliation could make it easy fodder for attack ads.
Sen. Mark Kelly, a Democrat running for reelection in Arizona, told CNN that he is going to review the details carefully before making a determination even as he says he has supported providing a path to legalization for DACA recipients in the past.
"It depends on the details of the immigration proposal ... I have been a supporter of a pathway to citizenship for folks under the DACA program and there are other immigration reforms I would like to see," Kelly said.
Other moderates including Sen. Joe Manchin, a moderate from West Virginia, have also said they back including immigration in the Democratic-only infrastructure bill.
"I heard it is in there," Manchin said. "I'm fine. I am a 2013 immigration supporter so you can look at the 2013 bill. I thought that was a great bill then. I thought if we had that bill then we wouldn't have all the problems we have today."
Immigration is just one of the many issues that could complicate Democrats' ability to pass their massive reconciliation bill. Lawmakers are also looking at expanding Obamacare and Medicare, overhauling prescription drug costs, implementing new parental and paid sick leave policies and expanding incentives for green energy companies. All of those issues could face an uphill battle in the diverse Democratic caucus and may not pass muster with the Senate parliamentarian.
House Speaker Nancy Pelosi can't afford to lose more than three Democratic votes on a budget reconciliation bill, which has been made more complicated by Rep. Jesús "Chuy" García of Illinois, who said last week he wouldn't support any reconciliation bill without a pathway to citizenship included in the legislation, making him one Democrat who is drawing a red line on the issue.
And the Congressional Hispanic Caucus, a group of House Democrats who advocate for Latino issues, has been working to try to pass an immigration reform bill through Congress and sees the budget reconciliation bill as a vehicle to get the effort done.
The CHC is working to make the strongest case possible for the parliamentarian to include a pathway to citizenship for Dreamers, TPS holders, farmworkers and essential workers in budget reconciliation, a senior House Democratic aide told CNN.
A group of seven congresswomen, some of whom are in the Congressional Hispanic Caucus, sent a letter to the chairmen of the House and Senate Budget Committees urging them to include immigration reform as part of the budget resolution.
Rep. Linda Sánchez of California, who led the group including Reps. Lucille Roybal-Allard of California, Nydia M. Velázquez of New York, Zoe Lofgren of California, Yvette D. Clarke of New York, Judy Chu of California and Karen Bass of California, argued in the letter "the economic benefits of immigration reform are significant and well-established."
"Unfortunately, our immigration laws have not been updated in more than 30 years. This has kept families apart for decades, limited our ability to attract and retain top talent, and forced millions to live their lives in a perpetual state of uncertainty," they wrote in the letter. "Updating our immigration system and creating an earned path to citizenship is essential to speeding our recovery from the COVID-19 pandemic and ensuring a prosperous economic future for America."
White House press secretary Jen Psaki was asked if the White House supported this effort at the briefing Thursday. Her succinct response: "Yep."
Immigration Hub Executive Director Sergio Gonzalez praised Democratic lawmakers' efforts to try to get this through budget reconciliation.
"Since 2013, there has not been an opportunity until today where we can confidently say there is a viable path forward to deliver citizenship for immigrant communities across America," he told CNN. "Democratic Senate leaders have made groundbreaking progress, and it speaks volumes that President Biden is committed to moving forward this proposal across the finish line. We commend them for their bold and decisive action to advance immigration solutions that carry overwhelming bipartisan support despite Republican disingenuous gamesmanship."
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