Thanks to both red and blue pro-amnesty forces, immigration policy debates have been reduced to charts, numbers, and dollar signs, a truth that has become painfully evident in Democrat’s push to pass a massive amnesty through budget reconciliation.

The budget reconciliation package is expected to include a laundry list of legislative priorities that were not included in the $1 trillion infrastructure package that managed to get past the Senate filibuster. The items that Democrats couldn’t convince Republicans were infrastructure then are likely to show up in budget reconciliation now, including universal preschool for three and four year olds, two free years of community college, Medicare expansion, paid family leave, and renewable energy and other green initiatives. A massive amnesty package, likely to be the largest in the nation’s history that could give somewhere between eight and eleven million illegal immigrants legal status, could also wind up in budget reconciliation if Democrats have their way.

The exact details of the amnesty, as with much of the nitty-gritty of what will ultimately end up in the reconciliation package, is still a work in progress. However, the current version seeks to provide legal status for illegal immigrants who fall into four categories.

First, illegal immigrants who have been in the country for at least three years who had, or were eligible for, Temporary Protected Status (TPS) on January 1, 2017 based on their national origin could be eligible for legal status. As will illegal aliens who have been in the county for at least three years and received or could have received deferred enforced departure (DED) upon President Biden coming into office would also be given legal status.

Democrats also want to give papers to illegal immigrant minors who came into the United States prior to January 1, 2021 and meet work or educational criteria. At first glance, this is reminiscent of Deferred Action for Childhood Arrivals (DACA), but DACA actually had better safeguards in place to limit the number of illegal immigrants who qualify—especially criminal illegal aliens. DACA prevented legal status, working permits, and the like to criminal illegals who have been convicted of a felony, one “significant misdemeanor,” or “three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission or scheme of misconduct.”

The version of the amnesty pushed by Rep. Jerry Nadler in the House does include impediments for criminal illegals to receive amnesty, but grants the Biden immigration regime a lot of interpretative leeway in the enforcement of such provisions. Nadler’s proposal makes an illegal immigrant inadmissible for a green card if they are criminals, threats to the national security, smugglers, student visa abusers, ineligible for citizenship, polygamists, international child abductors, or have voted unlawfully. However, Nadler’s amnesty grants the Department of Homeland Security Secretary the authority to disregard an illegal immigrant’s criminal history “for humanitarian purposes or family unity” (jailed criminal illegals are kids in cages, too!) or “if a waiver is otherwise in the public interest.” Exactly how forcing criminal illegals further into the body politic serves the public interest is beyond me.

Admittedly, Nadler’s amnesty does include language akin to DACA’s with respect to illegal aliens who have committed felony or misdemeanors. But, this too, could potentially be skirted by the Biden immigration regime because the current language remains vague.

Illegal immigrants deemed “essential” workers through the Covid-19 pandemic that have “demonstrated a consistent record of earned income in the United States” will also be covered under the amnesty package. “Essential worker” has become a common term in our pandemic vernacular, and states have gone about drawing peculiar and jagged boundaries on what constitutes essential, and by omission unessential, work over the course of the pandemic. But, even prior to the WuFlu making landfall in the United States, the term has been invoked in various immigration policy debates.

“The big wild card,” in the amnesty for Center for Immigration Studies Executive Director Mark Kirkorian, “is what does ‘essential workers’ mean.”

“That’s a business lobbyist’s term of art,” Kirkorian told The American Conservative. “‘Essential workers’ is this made-up lobbyist term that predated the pandemic by about a decade. They’ve been using this as a rhetorical tool for a while, and now they can say this is truly essential.”

However, one little known person is standing in the way of Democrats trying to cram through this massive amnesty. Senate Parliamentarian Elizabeth MacDonough is set to rule on whether or not the amnesty package is germane to the budget and can end up in the final version of the bill. Whether or not Democrats will get a favorable ruling from the Senate Parliamentarian remains a big if, but Democrats could still opt to overrule the Senate Parliamentarian and create a new precedent for the chamber—one that may be used by Republicans in the near future.

Authorized by the Congressional Budget Act of 1974, the legislative process known as budget reconciliation can be used to enact changes in government spending and revenues, as well as the federal debt limit. Because budget reconciliation packages are not subject to the filibuster, there’s a strong incentive to cram as many legislative priorities into the bill that otherwise would have never made it out of the Senate.

Both parties are not strangers to using the reconciliation process to do just that. Republicans used reconciliation to pass measures to try and reduce the federal deficit in the Reagan years and pass tax cuts during Bush II and Trump’s tenures. Because there was no reconciliation process in 2020, Democrats used reconciliation earlier this year to pass Biden’s American Rescue Plan.

However, budget reconciliation packages don’t offer a blank slate for Congress to chalk up with just any policy. The Byrd Rule, adopted in the mid-80s and named after its sponsor Sen. Robert Byrd, regulates what provisions should be considered “extraneous” to the budget reconciliation process because they either do not have an impact on government spending and revenues, or that their budgetary effects are “merely incidental to the non-budgetary components of the provision.”

“The Byrd rule exists, and was created, to actually prevent what’s happening now—to prevent reconciliation, which is an explicitly budgetary process, being hijacked or opened up to all these other things,” Rachel Bovard, senior director of policy at the Conservative Partnership Institute told TAC

Nonetheless, to encourage Democrats to use budget reconciliation to pursue amnesty, 50 economists wrote a letter to Democratic leaders in Congress and cited a study from the Center for American Progress (CAP) and the University of California, Davis Global Migration Center that claimed amnesty would increase gross domestic product (GDP) by $1.5 trillion and create 400,000 new jobs over the next decade. Recently, the Congressional Budget Office (CBO) estimated the amnesty could add about $140 billion to budget deficits over that same ten-year window, which seems like a lot, but is just a drop in the bucket compared to the trillions in debt we’re expected to amass over that same period.

But, the question isn’t just simply how big the budgetary impact may be. Providing amnesty to between eight and eleven million illegal immigrants will grant them access to a number of government benefits and is sure to have some, likely large, budgetary effect. Just about any policy looking to be enforced will ultimately have a nonzero effect on the budget. Therefore, is granting millions of illegal immigrants green cards actually Medicaid or SNAP reform, or is it exactly what they’re calling it—a historic amnesty.

Federation for American Immigration Reform (FAIR) Government Relations Director RJ Hauman told TAC, “Amnesty for illegal aliens is not strictly a budgetary concern. It would have substantive, negative effects on an entire range of issues, including criminal justice, law and order, social cohesion, environmental stewardship, public education, labor fairness, and infrastructure burdens. This makes it ineligible for inclusion in a budget reconciliation bill and we’re hopeful the parliamentarian recognizes this.”

“This attempt to blow up long-standing Senate rules in order to grant amnesty to 8 million illegal aliens would not only exacerbate an already raging crisis, but also deeply harm our nation for decades,” Hauman added.

Nevertheless, Democrats are prepared to make that economically-based argument to the Senate Parliamentarian. They’ll also roll out some other procedural arguments, particularly a Senate precedent set during the Bush administration in 2005 when Congress attempted to use reconciliation to turn off government benefits for certain aliens. Democrats will say that if Republicans can turn that spigot off, then they should be able to turn it on. 

Hauman told TAC that by focusing so much on the economic, pro-amnesty members of Congress are ”show[ing] their true colors.” “Nadler and Lofgren made the markup feel like a U.S. Chamber of Commerce zoom call. Nadler referred to illegal aliens as ‘human infrastructure,’ while Lofgren was basically saying, ‘gang members and sex offenders will deliver economic benefits for all Americans.’”

On the other hand, Republicans will argue amnesty is incidental because these government benefits are a secondary effect of granting illegal immigrants legal status. While presenting these procedural arguments to the Senate Parliamentarian are now necessary to prevent Democrats from having their way with this amnesty package, it points to a broader failing of the Republican establishment to properly frame the immigration debate.

The American right has effectively green-lit Democrats to try such a bold maneuver by cowering in the face of pro-amnesty forces and allowing them to make cultural considerations taboo. By excising cultural questions from the immigration debate, it created space for a number of economists, experts, and financial analysts (actors I like to call the “chart people”) to have an outsized impact on immigration policy. That’s not to say that economic issues surrounding immigration are unimportant. It’s clear that immigration, whether illegal or legal, has a profound impact on middle and working class wages

The proper role for these economic considerations should fall under the broader cultural impact immigration has on American society. And, some Republicans are attempting to change that. Colorado Rep. Doug Lamborn told TAC that “America is a truly great country and it is important that those who come to America believe in that unique greatness and our values. We must have individuals coming to the country who are willing to assimilate. Immigration must be viewed in its totality, not as an economic issue.”

Even if what Democrats say is true, and amnesty will cause an increase in GDP, a more pertinent question to the survival of our American way of life is will immigration eat away at our middle class and cause the further degradation of American communities? The answer, as made clear by our historical experience with high levels of immigration over the last few decades is yes.

September 17, 2021 1:20 pm

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