September 13, 2021
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Criminal Bars and Border Enforcement Provisions in Reconciliation Language Around Immigration Invite Byrd Rule Objections
Adding extraneous anti-immigrant provisions, such as criminal exclusions and border enforcement, would drive the immigration provisions in reconciliation away from budgetary concerns and towards policy matters. This distinction is one of heavy significance to Parliamentarian Elizabeth MacDonough, as is demonstrated by her previous advisory rulings. We thereby urge Congress to omit criminal exclusions and border enforcement from reconciliation language so as to minimize the chance of Byrd Rule objections from the Senate Parliamentarian.
The annotated Byrd Rule released by the Senate Budget Committee in 2005 requires that the budgetary components of the provision not be merely incidental to non-budgetary components, in order to “prohibit provisions in which policy changes plainly overwhelmed deficit changes.” The inclusion of criminal exclusions and border enforcement can be seen to constitute a breach of this aspect of the Byrd Rule.
Including onerous restrictions that impact which individuals qualify for a pathway to citizenship, especially based on politically sensitive groupings such as interactions with the criminal justice system, may push the text of the reconciliation bill away from budgetary concerns and towards policy concerns. Furthermore, the delegation of funds for novel technological modes of border security may constitute, as Senator Byrd wished to have excluded from the reconciliation process, “legislation that makes drastic alterations in policy.”
Looking to precedent, the only clear example of reconciliation being utilized for immigration policy is a draft of the Deficit Reduction Act of 2005 which proposed that unused green cards be recaptured and distributed. In that proposal, we see no mention of additional qualification requirements for taking part in the application process for the acquisition of these green cards beyond what is already in statute. That is likely because the drafters of the 2005 bill were privy to the fact that adding in policy-laden qualification requirements would increase the chance that the Senate Parliamentarian would view the provision as one in which the non-budgetary components outweigh the budgetary components.
In legislating the FY22 reconciliation legislation, Congress should be wary of provisions like criminal bars and investment in novel border security methods, as these provisions may increase the likelihood of a Byrd Rule objection on the part of the Senate Parliamentarian.
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