92 legal scholars call for Kamala Harris, as Presiding Officer of Senate, to include immigration provision in reconciliation bill

A group of 92 legal scholars is calling on Vice President Kamala Harris and Democratic leaders in the Senate to ignore the parliamentarian’s previous ruling and include an immigration measure in the $3.5 trillion reconciliation package.

In addition to Harris, who, as vice president, presides over the Senate, the scholars also called on Senate Majority Leader Chuck Schumer (D-N.Y.) and Senate President Pro Tempore Patrick Leahy (D-Vt.) to not “overrule” Parliamentarian Elizabeth MacDonough, but rather for the chamber’s president to issue a ruling that contradicts her, The Hill reported.

MacDonough interprets existing rules and decides if legislation adheres to them; her rulings are not binding.

“As you know, the Vice President serves as Presiding Officer when she is in attendance, and the President pro tempore or his designate serves as Presiding Officer at other times,” the scholars noted.

Last month, MacDonough ruled that language in the reconciliation bill providing new protections for illegal immigrants was not compatible with rules for such legislation. Since then, progressives in Congress as well as in academia and the political punditry, have been pressing Senate Democratic leaders to ignore MacDonough’s ruling and include the immigrant provisions anyway.

If enacted, the provision will provide the federal government with the authority to offer legal permanent residency inside the U.S. to an estimated 8 million illegal aliens as well as those in the country on humanitarian parole programs and unable to apply for permanent residency status at present.

MacDonough said in her Sept. 19 ruling that the provision amounts to a major policy change and would also violate the strict budgetary requirements for reconciliation legislation known as the Byrd Rule, The Hill noted.

“The policy changes of this proposal far outweigh the budgetary impact scored to it, and it is not appropriate for inclusion in reconciliation,” MacDonough wrote.

“When determining whether a provision is extraneous, the Presiding Officer may rely on the Senate Parliamentarian for expert advice,” the scholars noted. “However, as past Parliamentarians have emphasized, the ultimate decision on a point of order lies with the Presiding Officer, subject to appeal to the full Senate.”

As such, they continued, “the Presiding Officer therefore must exercise her own judgment in deciding whether a provision should be stricken from a budget reconciliation bill on Byrd Rule grounds.”

Reconciliation bills require a simple majority; in the 50-50 chamber, Democrats would be able to overcome universal Republican opposition with Harris serving as the tie-breaker. Several immigration advocates have been pushing Democrats to include the provision because they say now is a once-in-a-lifetime opportunity to legalize millions of people who broke U.S. law to enter the country.

The immigration provision is not the only one that MacDonough has flagged. She has also ruled against another proposal to give illegal aliens permanent residency, citing the same budgetary violations, The Hill noted.

The legal scholars say that the parliamentarian is not empowered to render a final ruling on the issue and that only the presiding officer or the full Senate can do so on appeal. To beat back an appeal to the presiding officer’s ruling, the chamber would need 51 votes, which means Harris would have to be present and actually presiding over the chamber to cast the tie-breaker.

In their letter, the scholars say that granting legal residency to the 8 million illegal immigrants would have substantial budgetary benefits.

“The outlay and revenue effects of extending LPR status to 8 million people are sweeping. The Congressional Budget Office estimates that the budgetary effect of the LPR provisions would be $140 billion over the next 10 years — more than the entire effect of some statutes enacted through budget reconciliation in the past,” they noted.

“For the Senate to reach its own conclusion on the Byrd Rule’s application to [immigration provisions] should not be seen as an ‘overruling’ of anyone. Rather, it would recognize that elected members of Congress are ultimately responsible for deciding whether to enact legislation, in accord with statutory constraints, the advice of civil servants, the voices of their constituents, and their own considered judgment,” the scholars added.

Jon Dougherty


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