Democrats may overturn parliamentarian ruling on immigration

Democrats weigh overturning Senate parliamentarian’s ruling on immigration

Sen. Dick Durbin (D-Ill.) speaks to reporters on Jan. 28, 2020.

Dec. 8, 2021 Updated 2:47 PM PT

WASHINGTON — Senate Democrats are signaling a new willingness to consider how to get around a potentially adverse ruling by a key Senate official on whether they can include immigration policy in their social spending and climate bill.

Senate Parliamentarian Elizabeth MacDonough is expected to rule shortly on whether Democrats’ third immigration proposal — which would provide work permits and deportation protection to immigrants in the country illegally — conforms with Senate rules required to pass the package. She rejected two earlier immigration provisions.

Senate Majority Whip Richard J. Durbin (D-Ill.), a longtime proponent of immigration reform, said he would support overruling the parliamentarian if she rules against their latest proposal.

“I’d vote for that,” Durbin said in a brief interview. “I hope it doesn’t come to that.”

Overruling the parliamentarian has been considered a long shot because it would be a significant change in Senate custom and precedent. In recent weeks, Durbin repeatedly called the idea unrealistic and downplayed the idea.

“I’m still downplaying it,” he said. “I hope we get a good ruling from the parliamentarian, but I won’t rule it out.”

As the prospect of enacting a once-in-a-generation bill without any meaningful immigration policy comes into closer view, some Democrats are looking at the issue anew. “These chances don’t happen very often,” Durbin said.

Disregarding the parliamentarian’s decision would require, at minimum, the support of all 48 Senate Democrats and the two independents who caucus with them. Durbin, who is responsible for keeping track of Democratic votes, said he didn’t know if he’d get 50 on the issue, but said his gut instinct is that it is “close.”

“We don’t know until it is tested,” he said.

Still, Sen. Joe Manchin III (D-W.Va.), the most conservative Democrat in the chamber, is adamantly opposed.

“I’m not going to vote to overrule the parliamentarian,” Manchin said on Fox News last month, a sentiment he repeated Wednesday. “I’m not going to do that. They all know that.”

Sen. Alex Padilla (D-Calif.), who said he would support overruling the parliamentarian if necessary, is encouraging his fellow Democrats to do the same.

“Whatever it takes to get this done,” he said. “For Democrats as a whole, I think as time goes on, as negotiations continue, it’s increasingly clear how important and urgent this is.”

Sen. Robert Menendez (D-N.J.), another longtime supporter of a pathway to citizenship, said in the event of an adverse ruling, Democrats would consider “all the options.”

In terms of overruling the parliamentarian, he said: “I hope that it won’t come to that and I’ll wait for her final decision.”

Democrats are under intense pressure from immigration reform advocates to disregard the parliamentarian’s decision. On Tuesday, immigrant rights groups and a small group of House Democrats rallied outside the Senate side of the Capitol to demand Senate Democrats do so.

“Democrats have a trifecta — we have the House, we have the Senate and we have the presidency — and if we want to do it, we will,” said Rep. Alexandria Ocasio-Cortez (D-N.Y.).

Many of those advocates say the deportation protection is not enough and that the Senate should go back to their first proposal, which was a pathway to citizenship for most immigrants.

The Senate parliamentarian has already ruled against that plan and one other.

Even if Democrats find they don’t have enough support to overrule the parliamentarian’s decision, the outside pressure could increase the likelihood that Democrats will have to vote on the issue anyway. It would force Democrats to take a position and set a potential precedent on whether they will abide by the parliamentarian’s rulings.

Democrats warn that any attempt to overrule the parliamentarian’s decision would be procedurally complicated. Even if all Democrats were to agree to ignore her decision, Durbin indicated Republicans might be able to strike the provision with a simple majority by merely picking off a single Democrat.

“It gets complicated,” Durbin said. “There are a lot of different vectors that you can use in this debate, and I expect to see them all.”