A path to citizenship for unauthorized immigrants is not “merely incidental” to the American economy—it’s primarily intended to provide labor and political rights and create the positive economic gains that come with it.
That’s why the Senate parliamentarian should rule to include immigration reform in the current $3.5 trillion budget resolution, which aims to provide a pathway to citizenship for many of the current unauthorized immigrants residing in the United States.
The Senate parliamentarian heard arguments about the inclusion of a pathway to citizenship from Democratic legislators on Friday, and on the same day, the House Judiciary Committee posted its version of the immigration provisions for the budget resolution. The following Monday, the Judiciary Committee voted to approve the immigration language, allowing it to be included in the overall budget resolution. Included in it are provisions that would put immigrant Dreamers, Temporary Protected Status and Deferred Enforced Departure recipients, farmworkers and certain workers deemed to have been employed in “essential” occupations during the pandemic onto a path to citizenship, as well as recapture unused immigrant visas from prior years, among other reforms.
Using reconciliation to pass these reforms would allow the Democrats to bypass Senate Republicans using the filibuster to prevent the legislation from passing. The Democrats’ budget resolution is an essential piece of legislation that must pass: It has the potential to make historic improvements in bolstering the social safety net, fighting climate change, and creating jobs. However, if it leaves millions of unauthorized immigrants without the civil, human, and workplace rights they would gain if they had a path to citizenship, the plan would fail to achieve its full potential.
Numerous advocacy organizations, legislators, prominent economists, Republican business representatives, and local government officials have called on congressional leaders to pass a pathway to citizenship through the reconciliation process. They note that the reconciliation process is likely the best opportunity to pass a pathway to citizenship—which is by far the most important element of immigration reform—during the current congressional session.
In order to determine whether a path to citizenship for some or all unauthorized immigrants can be included in the spending package that could pass through reconciliation, the Senate’s parliamentarian will have to rule on the matter. She will consider two major factors:
- The first is whether the legislation has a significant impact on the budget, measured by outlays and revenues.
- And second, the parliamentarian will have to consider the elements of the “Byrd Rule,” which is a test set out in law used to determine whether a provision in the legislation is an “extraneous matter.” As the Congressional Research Service puts it, the Byrd Rule “prohibits inclusion in reconciliation of matter unrelated to the deficit reduction goals of the reconciliation process.” Matters unrelated to those goals are considered extraneous. If the parliamentarian rules that a path to citizenship is an extraneous matter, it cannot be included in the broader budget legislation.
Subsection (b)(1) of the Byrd Rule provides examples of what constitutes an extraneous matter. The example that opponents of creating a path to citizenship through reconciliation will point to is one that says that the legal provision in question “produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision.” In other words, even if the provision has an impact on the budget—if its main purpose is non-budgetary, and thus it’s more like a coincidence rather than the primary intention of the provision—then the budgetary effect of the provision is “merely incidental.”
In terms of this first prong—the impact on the budget—it is a well-known fact that provisions providing a path to citizenship for unauthorized immigrants have a significant budgetary impact. One need look no further than the multiple reports that the Congressional Budget Office (CBO) has published in their “scoring” of legislation that would provide a path to citizenship. One example is the legalization provisions in S. 744, a comprehensive immigration reform bill that passed the Senate in 2013 but was never voted on in the House. Perhaps the most recent is the CBO’s scoring of H.R. 6—the American Dream and Promise Act of 2021—which would have increased the deficit by $42.5 billion, as a result of costs to the government from providing federal benefits and services to the Dreamers and Temporary Protected Status recipients who would be put on a path to legal permanent residence and citizenship and thereby become newly eligible for federal benefits.
In terms of the parliamentarian’s consideration of whether the costs to the government and impact on the deficit that result from a path to citizenship are “merely incidental” to the main purpose of the provisions in the legislation, one could argue that considering path to citizenship provisions for inclusion in the reconciliation bill—such as those in the Dream and Promise Act—are solely intended to provide a lawful immigration status to persons who lack one, and have nothing to do with the budget. However, it should be patently obvious to any reasonable person that a path to citizenship for unauthorized immigrants is primarily about providing civil and labor rights to the unauthorized immigrant workers who make up nearly 5% of the U.S. labor force but lack them.
Having a labor force where everyone is protected from workplace violations and has the right to join a union and help organize their colleagues without fear of retaliation and deportation, and where everyone is equally paying their fair share of taxes and receiving their fair share of social safety net benefits, would be a massive improvement and shift in the U.S. economy and by no means “merely incidental” to the government’s budget and deficit.
We already know that unauthorized immigrants pay nearly $12 billion in state and local taxes every year, and it’s estimated that roughly half of unauthorized immigrants are on formal payrolls; legalization could therefore mean a doubling of the federal taxes that unauthorized workers currently pay.
The goal of passing a path to citizenship is so that people who are currently excluded from normal participation in American economic life can begin participating with full and equal rights, as well as have a secure and fair way to pay their appropriate share in taxes and receive the social safety net benefits they would then be entitled to, such as Medicaid, food stamps, and Social Security.
Multiple reports from economists over the years have shown that a path to citizenship would also create jobs, increase the U.S. gross domestic product, and raise wages for both newly legalized workers and the U.S. workers employed alongside them. Those higher wages would in turn increase federal revenues for years to come.
There are a number of feasible ways that Democratic legislators can craft the legislative language to achieve the broadest possible legalization for the unauthorized immigrant population. The House Judiciary Committee’s text that was approved on Monday is unlikely to be the final version in the final bill, and ultimately the parliamentarian will make a ruling on the immigration provisions. But given the significant impact on federal outlays and revenues that a path to citizenship for millions will have, all of the viable options used to craft the legislative language should pass legal muster in terms of the Byrd Rule.
In fact, the broader the legalization, the better, in terms of the economic benefits that will result.