How to Win Protections for Immigrants in Reconciliation

Senate Democrats have the power under existing rules to protect millions of immigrants. The Presiding Officer of the Senate — which typically is the Vice President, but could be the Senate President pro tempore or a designee — can rule that providing a pathway to citizenship in the reconciliation bill does not violate the Byrd Rule, despite the parliamentarian’s contrary and non-binding advice. While this is not an authority regularly invoked, this memo sets forth the compelling political reasons for why — and the pathway under existing procedural rules for how to do so.

No precedent in the Senate would stop Democrats from exercising the power to disregard the parliamentarian’s advisory opinion. The question before the Senate — whether a pathway to citizenship may be included in a reconciliation bill — must ultimately be adjudicated by members of the Senate, not the parliamentarian. On the specific question of the authority of the Presiding Officer to disregard the advice of the Parliamentarian, only 41 Senators are needed for the measure to succeed. But note: Once the measure succeeds, Democrats must remain united with a simple majority as Republicans try to amend the reconciliation bill.