Republicans are set to take total control of Congress and the White House and there’s excitement around getting to achieve long-desired goals. Immigration reform is near the top of the GOP priority list.
So it’s not surprising there’s talk in Washington, D.C., of enshrining some of those policies into law without Democratic support. But doing so likely would require votes to break Senate rules concerning what sorts of measures are or aren’t subject to the filibuster, the upper chamber’s effective 60-vote threshold to pass bills.
In the modern congressional age, with Democrats and Republicans rarely willing to cooperate even on matters of vital national concern, major legislation occurs primarily when one party or the other has the presidency and majorities in both chambers. A process called “budget reconciliation,” which allows the Senate majority to pass bills without worrying about the filibuster, is the main avenue available.
Under Senate rules, the chamber can pass two such bills in a Congress. Democrats in the first two years of Biden’s term enacted the American Rescue Plan Act and the absurdly named Inflation Reduction Act via the reconciliation process with no Republican votes.
There are limits to reconciliation, though. The main one is that provisions in such bills must have a direct fiscal impact and can’t make broad policy changes. Republicans reportedly are mulling overriding those rules in order to pass immigration reform on a strictly partisan basis.
An example of the kind of initiative they’d like to include is the “Remain in Mexico” policy Donald Trump implemented during his first term, which required asylum-seekers to stay south of the border while the U.S. considered their applications. Trump intends to reinstate that policy by executive order soon after he takes office for his second term, but some Republicans worry that a future Democratic president simply will scotch the policy, as Joe Biden did early in his presidency. They’d like to give “Remain in Mexico” the force of law, as well as a host of other priorities.
That’s an understandable desire. But doing so via budget reconciliation would be a grave — and unnecessary — mistake.
Outgoing Arizona Sen. Kyrsten Sinema, a Democrat turned independent, told Semafor recently there were rumblings the GOP would vote to override the Senate parliamentarian and approve immigration policies as part of budget reconciliation. She said that would amount to a “backdoor elimination of the filibuster.” Indeed it would.
Sinema knows this sort of drama well. The Senate parliamentarian in 2021 ruled against Democrats’ attempt to include a pathway to citizenship for 8 million undocumented immigrants, including millions of “Dreamers,” the term given to people brought to the U.S. as children years ago whose immigration status has been hotly debated ever since. Sinema said she refused to vote to overrule the parliamentarian despite intense pressure from activists.
In broad, philosophical terms, there’s reason to question how the filibuster (mentioned not once in the Constitution) has become a de facto supermajority requirement on even routine matters in the Senate, but Republicans in the last election ran as fierce protectors of the practice. To undermine the rules so brazenly, even to tackle an issue about which Americans care deeply, would be the height of hypocrisy.
Moreover, there’s a keen bipartisan desire to fix the nation’s broken immigration system. A year ago, a group of Democratic and Republican senators hammered out a compromise bill to tighten controls on the southern border, only to have other Republicans kill the measure at Trump’s behest because he wanted to deny Biden a win on an issue so important to Trump’s platform.
Trump’s gambit worked politically, but there’s no reason those talks can’t be revived, especially if Democrats face up to the new political realities. And the discussions ought to be expanded to include reasonable provisions to solve the Dreamers’ dilemma, which Trump said in December he’d like to address. But that would require Republicans to resist the temptation of jamming through legislation reflecting only GOP priorities.
Better to establish a bipartisan group of lawmakers who’ve worked hard on this issue for years, including the likes of Illinois Democratic Sen. Dick Durbin, to produce a comprehensive immigration reform package for the first time since Ronald Reagan was in the White House. Most Democratic lawmakers finally realize the party’s de facto open-borders stance of previous years was a terrible mistake and a big reason for the November’s election results. For all the GOP talk of partisan solutions, the ground for potential compromise ironically could well be the most fertile it’s been in decades.
We have a chance to harden the southern border, resolve the immigration status of millions who’ve been contributors to our economy and could contribute even more as legal residents and eventually citizens, remove those who are a danger to our society and fix our system of legal immigration to open the door to more highly qualified workers.
Yes, Republicans could give the force of law to some or all of their immigration priorities. What’s more, they look today at a Senate map in which it’s hard to see Democrats taking control of the chamber anytime soon, and that makes a partisan approach all the more enticing.
But history tells us that both parties’ assumptions around political alignments and how long they will persist more often than not have been wrong. If the GOP nukes the filibuster in all but name, nothing will stop the Democrats from changing those laws on a partisan basis in the future, if and when the political winds blow a different direction.
A bipartisan solution, which we believe is within reach, truly would set some much-needed, long-lasting rules around who’s allowed to live and work in this country and what happens to those who break those rules. And a happy byproduct would be some restoration of public belief that Congress can act both humanely and in the national interest.
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