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Can Democrats go it alone on immigrant amnesty?

Deferred Action for Childhood Arrivals, or DACA, students

Deferred Action for Childhood Arrivals, or DACA, students celebrate in front of the Supreme Court after the court rejected President Donald Trump's effort to end legal protections for young immigrants on June 18, 2020, in Washington, D.C. Credit: AP/Manuel Balce Ceneta

There’s a strong case that 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 the Democrats voted for the bill and all the 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 to qualify for inclusion in a reconciliation bill, there is precedent for it, and it would be popular. None is persuasive.

The 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 that 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 an 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 that nobody who favors that policy does so because of that effect. The Senate parliamentarian, as a result, ruled that 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 back then on whether a reconciliation bill could include immigration provisions. Neither party even asked for that ruling.

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, of course, be entirely different. Nearly all Republicans would object to that, at least if it were not coupled with other immigration reforms (such as increased enforcement of the immigration laws in the workplace).

A conscientious parliamentarian would have to sustain that objection and rule that 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.

After decades of debate over amnesty, even the dimmest politicians have learned that polling on it can rarely be taken at face value. Take the advocacy polls that find that most Americans prefer offering immigrants who are here illegally a path to citizenship over deporting them.

It’s a finding that doesn’t shed any light on a common Republican position: that any such offer requires increased enforcement so we are not merely encouraging further illegal immigration.

It also stacks the deck by treating mass deportation and mass amnesty as the only alternatives. Presumably, a poll that asked whether the normal protections for minority rights in Congress should be discarded to enable a path to citizenship would yield lower support.

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 that we used to consider normal to be popular.

Thus President Barack Obama instituted quasi-amnesties by fiat, rationalizing the moves by saying that Congress had failed to act. Those amnesties have been ricocheting around the courts ever since.

It may be, however, that Obama got the story backward, and that 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.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review and a visiting fellow at the American Enterprise Institute.