President-elect Trump’s GOP allies in Congress want to jam tough immigration and border security reforms through the Senate using a special fast track known as budget reconciliation, but face a major obstacle in Senate Parliamentarian Elizabeth McDonough.
Shutting down the huge flow of migrants across the U.S.-Mexico border is one of Trump’s top priorities, but Republican legislation that would make it harder for migrants to claim asylum and roll back protections for migrant minors under the Flores settlement faces a Democratic filibuster in the Senate.
This has prompted a discussion among conservatives in the Senate and House over moving as aggressive a border-security package as possible under budget reconciliation, which would allow it to pass with a simple majority through the Senate.
Getting that done would depend on whether the Senate parliamentarian rules that it complies with the chamber’s Byrd Rule, which requires that legislation produce a change in spending or revenues and have a budgetary impact that’s not merely incidental to the policy change.
A Senate GOP aide warned that that while funding for the border wall and more Border Patrol agents would easily be allowed in a budget reconciliation bill under the Senate’s rules, reforms to the nation’s asylum and parole laws, which Republicans say the Biden administration used to allow millions of migrants into the country, may not pass muster.
“Some of it could be possible but a lot of it could fall to the merely-incidental rule,” said a Senate GOP aide.
“I think there will be limitations to the changes to the Immigration and Nationality Act and going into the criminal titles and changing the codes, some of that will be pretty hard to do in a reconciliation setting,” the source said, adding that some of those reforms could be enacted through executive actions.
The problem with relying on executive action, however, is that it could be reversed by a future Democratic president.
“Republicans are already talking about doing three reconciliation measures in the next two years and one of them will be focused on that, border security,” said a GOP strategist. “The parliamentarian could be problematic. If you’re starting to push policy legislation into the reconciliation process, that’s a no no.”
Some Republicans are pushing the argument that GOP senators could overrule the parliamentarian to get Trump’s top legislative goals across the finish line.
“The bottom line is if Republicans really want to be tough, they can ignore the parliamentarian. They can do whatever they want. We saw what happened in the House this week when the House Freedom Caucus ignored the parliamentarian,” the strategist said.
House Freedom Caucus Chairman Andy Harris (R-Md.) and Rep. Bob Good (R-Va.) stunned colleagues on Tuesday when they used what was supposed to be a ceremonial pro forma session of the House to quash a popular bill to expand some Social Security benefits while no other lawmaker was in the chamber to object.
Harris recognized Good’s request to table Social Security bill despite being told explicitly by the House parliamentarian that he was not allowed to grant his colleague’s request.
McDonough, the Senate parliamentarian, has a record of ruling against adding immigration proposals to budget reconciliation bills. That could lead to calls that she be replaced, say GOP aides.
In 2021, she ruled against a Democratic push to add immigrant-friendly provisions to a $2 trillion social spending bill they wanted to pass under budget reconciliation. The proposals would have provided work permits to immigrants who had come to the country before 2011, temporary protection from deportation and more flexibility for unused work visas.
She also ruled against a proposal backed by Sen. Bernie Sanders (I-Vt.) to increase the federal minimum wage to $15 dollars an hour to a $1.9 trillion COVID-relief bill that Democrats passed under budget reconciliation in early 2021.
Some Republicans argue that that a Republican senator presiding over the chamber could ignore the parliamentarian’s advice to rule against asylum and parole reforms included in a future reconciliation package.
“Certainly, that’s an option that exists,” said the Senate GOP aide. “Whether you have 51 senators to overrule the parliamentarian, a handful of Republicans are probably pretty skittish about what sort of precedent that creates for the Democrats in the future to do that.”
Senate Republican Leader Mitch McConnell (R-Ky.), who is generally regarded as an “institutionalist,” wasn’t a fan of overruling the parliamentarian but he is stepping down from the leadership at the end of the year.
His successor could replace McDonough with someone more likely to rule favorably on efforts to stretch the scope of a reconciliation package.
“When we take the majority and we have a new majority leader, does Elizabeth McDonough remain the parliamentarian? Why not hire a parliamentarian who perhaps might be more favorable to allowing some of these provisions to move past Byrd Rule obstacles,” the aide said.
Otherwise, Republicans, who are expecting to control a 53-seat Senate majority next year, would have to muster at least seven Democratic votes for legislation to close off or tighten the asylum and parole rules that enabled millions of migrants to enter the country during President Biden’s four years in office.
Mark Krikorian, executive director of the Center for Immigration Studies, which favors reducing immigration flows, said the reforms in the House-GOP passed Secure the Border Act, H.R. 2, would be a “big part” of any legislative fix to the border problem.
It would require the Department of Homeland Security to resume construction of the border wall, increase the number of Border Patrol agents, tighten asylum standards, narrow Homeland Security’s power to grant parole to illegal aliens and criminalize visa overstays.
In a letter circulated to Republican lawmakers Wednesday, House Majority Leader Steve Scalise (R-La.) highlighted border security as a top priority for a budget reconciliation package that could pass the Senate with a simple majority, bypassing a Democratic filibuster.
“We will surge resources to the southern border to build the Trump Border Wall, acquire new detection technologies, bolster our Border Patrol, and stop the flow of illegal immigrants,” he wrote.
Sen. Lindsey Graham (R-S.C.), one of Trump’s closest Senate allies, this week called for Congress to use budget reconciliation to secure the border.
“If we hold the House, we will hit the ground running on budget reconciliation — the best vehicle to jump start the economy and help secure the border,” Graham posted on X, the social media site.
Republican aides say that adding money for the border wall, detection technologies and Border Patrol agents should be able to pass muster with the parliamentarian pretty easily because those reforms are all expenditures and clearly meet the Byrd Rule.
But the other core reforms of HR 2 would likely meet resistance from the parliamentarian.
James Wallner, a former Senate GOP aide, said how the parliamentarian rules will depend heavily on how the provisions in question are drafted.
He said that if Republican senators can get the Congressional Budget Office to score asylum, parole and visa reforms as having a budgetary impact, they can argue it should be protected from a filibuster.
“On immigration, there are very few, if any, merely incidental test points of order” that could serve as precedent to rule against including immigration reforms in a budget reconciliation package, he said.
Krikorian said that while Trump can do a lot to limit migration through executive action, passing legislation “is really improvement.”
“If we’re going to avoid this ping-ponging back [and forth] with one administration doing something and the next administration undoing it, we’re going to need legislation and Republicans have an opportunity here to get something done and they shouldn’t squander it,” he said.
Emily Brooks contributed.
