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Nation’s Leading Immigration Legal Scholars Call on Democrats to Use Their Authority to Get to ‘Yes’ on Immigration Reform

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Join growing chorus of experts criticizing the Parliamentarian’s rationale for getting to no on citizenship proposals


A Who’s Who of immigration legal scholars has penned a letter to Vice-President Kamala Harris and Senate Democratic leaders that strongly criticizes the Senate Parliamentarian’s rationale for rejecting legislative proposals to put millions of undocumented immigrants on a path to permanent residency and citizenship. The 92 scholars argue that the authority for interpreting the Byrd Rule resides with the Senate’s Presiding Officer – the Vice President – and the elected members of the Senate, not with civil service staff who operate in an advisory capacity. They argue not for “overruling” anyone, but for recognizing their authority, considering the overwhelming weight of relevant precedent, and ruling yes. 

The legal scholars’ letter follows on two other pieces arguing that the Senate should act and the Parliamentarian’s reasoning is flawed. Charles Kamasaki, immigration policy expert and author, cites multiple precedents in a deep-dive Medium article. He writes that “the Senate has passed immigration-related provisions on at least five previous reconciliation bills. Several affected many more people than the 8 million that Democrats propose to legalize, at far lower cost.” Similarly, Cecilia Muñoz, former Obama domestic policy chief and senior adviser at New America, took issue with the Parliamentarian’s reasoning in The Hill. She argues, “There was a pathway to ‘yes’ that was well-considered and legitimate. She chose the other path, and her argument shows that she had to work plenty hard to get there.” 

Find excerpts from these pieces below.

Letter from 92 scholars calling on Vice-President Harris and Democratic leadership to include immigration in reconciliation: 

…We believe that the Senate can — consistent with the Congressional Budget Act and Senate rules — enact these LPR provisions through the budget reconciliation process. We believe, moreover, that lawmakers should seize this historic opportunity to extend the benefits of LPR status to these 8 million immigrant Americans, including individuals who arrived in the United States as children, who fled from armed conflict or natural disaster in their home countries, and who have performed critical work in vital sectors of the economy throughout the COVID-19 pandemic.

…We respectfully submit that a considered evaluation of the arguments on all sides will lead Senators to conclude that Title VII’s substantial effects on public benefits and revenue are not “merely incidental” to the non- budgetary components. 

…For decades, the budget reconciliation process has been used to enact benefit expansions — including expansion of the earned income tax credit in the Omnibus Budget Reconciliation Act of 1993 signed by President Clinton, the expansion of Pell Grants in the College Cost Reductionand Access Act of 2007 signed by President George W. Bush, and the health insurance and student aid expansions in the Health Care and Education Reconciliation Act signed by PresidentObama. Subjecting the LPR provisions in Title VII to a different standard means that benefits for 8 million immigrants could be blocked by a minority of 41 Senators. That would make the filibuster an even more potent and dangerous weapon than it already is, and further restrict the legislative branch’s ability to respond to the nation’s most urgent needs. 

…For the Senate to reach its own conclusion on the Byrd Rule’s application to Title VII 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.

Charles Kamasaki in Medium: How the Senate Parliamentarian Can Get to ‘Yes’ on Immigration:

The Parliamentarian also strays far from her technical jurisdiction by opining that some past immigration-related reconciliation provisions—including many with significant policy impact and minimal budget effects and thus questionable adherence to the Byrd Rule—were kosher because they enjoyed bipartisan support. Notably, she failed to apply this standard to the 2017 reconciliation bill, which disqualified a million kids from the Child Tax Credit at the cost of a mere $3.48 billion dollars, that passed on a strict party-line vote.[xv] The DREAM Act and farmworker legalization legislation have passed the House twice with bipartisan support, and a proposal to legalize DREAMers and other undocumented immigrants garnered eight GOP votes in the Senate as recently as 2018.[xvi] 

In sum, the Senate has passed immigration-related provisions on at least five previous reconciliation bills. Several affected many more people than the 8 million that Democrats propose to legalize, at far lower cost. One provided new visas to those without access to them. Another even provided an amnesty for past offenses, thus allowing a million people to obtain permanent residence. A fair reading of these past precedents should’ve allowed the current proposals to be included in reconciliation. 

In the coming days the Democrats will proffer other proposals with less expansive policy changes. If instead of applying hypercritical, often inaccurate and inconsistent standards to them, the Parliamentarian fairly applies past precedent, she can easily get to “yes” to including immigration provisions in reconciliation legislation. If she doesn’t, Senate leaders should disregard her non-binding advice, thereby transforming the lives of millions.

Cecilia Muñoz in The Hill, Senate parliamentarian strains to block long overdue immigration reform

Senate Parliamentarian Elizabeth McDonough’s stunning recent decision to disallow immigration proposals from the budget reconciliation bill made it abundantly clear how eager she was to get to ‘no,’ despite ample precedent and a strong rationale that would allow for the immigration proposal to be included in a reconciliation bill. There was a pathway to ‘yes’ that was well-considered and legitimate. She chose the other path, and her argument shows that she had to work plenty hard to get there. 

…McDonough calls the immigration proposals that passed on prior reconciliation bills ‘less fraught.’ Although it’s buried in the text, this is the punch line. What’s at issue here really is that getting anything done on immigration — even something that the country overwhelmingly supports — is hard … Her own analysis reveals that this is why the parliamentarian balked, even though there is a pathway that allows the Senate to at long last do its job on this issue. The parliamentarian’s action also revealed how serious the Senate Democrats are about getting these immigration proposals through.

…Democrats in the Senate are right to push to move this legislation at any opportunity. There is a clear, legitimate pathway on the reconciliation bill to allow immigration legislation that the public — if not their Republican senators — clearly supports. This is the time. If the Senate parliamentarian will not follow the clear path that allows her to get to ‘yes,’ the Senate should overrule her and get the job done.