Why We’re Celebrating the Senate’s Passage of Legislation Without Immigration
In flying colors, the Democratic-led Senate passed on a party-line vote the Inflation Reduction Act, the signature bill that advances a trimmed-back version of President Biden’s reform agenda “Build Back Better.” Expected to move to the House this week, the bill’s provisions are intended to reduce the deficit, lower prescription drug prices, and address the climate crisis – but it has not a single immigration measure. Nothing is in the bill that fixes the shortage in visas, improves case processing, legalizes people who are unauthorized, reforms immigration courts, or holds Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) accountable for corruption and abuses.
So why did immigration reform get left out after President Biden championed it in his campaign agenda? And should we cheer this moment when the bill so glaringly leaves out immigration?
One year ago, Build Back Better (BBB) was gaining momentum albeit as a Democratic-only agenda. On August 9, Senate Democrats released a $3.5 trillion package that included $107 billion to reform immigration. To be successful, the bill not only needed the support of every one of the 50 Democrats but also had to clear the “Byrd Rule” to be eligible for passage as part of Budget Reconciliation. After several rounds, the Senate Parliamentarian knocked out most of the immigration provisions. Failing the Byrd Rule was fatal because it meant immigration provisions would require 60 votes to pass—an impossible number to reach with the Senate evenly split between the parties.
By December, intra-party disagreements had BBB on the ropes and notably key Democratic moderates Joe Manchin (WV) and Kyrsten Sinema (AZ) were not on board. Negotiations went dormant. There was almost no visible action until late July when out of the blue Senator Manchin and Senate Majority Leader Chuck Schumer announced a deal.
Without doubt the exclusion of any positive immigration reforms is an enormous failure by Democrats. For a party and a president that have long-touted the critical role immigrants have played in the nation’s growth and success, and its recovery from the pandemic, leaving out immigration is a glaring hole. It is also a capitulation to political pressure that Democrats will be accused of weakness on border enforcement.
Democrats’ unwillingness to advance any immigration reform in the bill cannot be completely blamed on the Byrd Rule. In fact, in 2021 the Parliamentarian did not issue a Byrd Rule opinion on the package of reforms that would have recaptured and improved family-based employment-based and diversity visa processing. That left the door open for Senators Manchin and Schumer to include it in their deal.
But with November elections fast approaching, many moderate Democrats were simply unwilling to vote for legalization and other immigration reforms. More certain however, several Republicans were expected to demand votes on controversial amendments that would exclude and scapegoat refugees, asylum seekers, and other immigrants.
As the Inflation Reduction Act headed into debate, it seemed almost unavoidable that some of the nearly 60 harmful immigration amendments filed on the bill would pass. Already a handful of Democrats had joined Sen. Lankford and other Republicans on a bill to halt President Biden’s attempts to undo the Trump policy banning and expelling asylum seekers known as Title 42. With several more Democrats expressing concerns, CNN reported it as a rebellion against Biden.
To heighten the threat, in the pre-dawn hours of debate, it was announced that Sen. Lankford’s Title 42 amendment would only require 50 votes to pass—even though it clearly violated the Byrd Rule and should have needed 60 votes. Many Democratic Senators had called for a general party pact to vote no on any amendments, and Senators Menendez and Padilla demanded the party protect immigrants from being used as “political pawns.” Remarkably, all 50 voted against the amendment.
It helped that Senator Jon Tester (D-MT) offered a similar Title 42 amendment that needed 60 votes to pass—so moderate Democrats vulnerable in the upcoming elections could vote for that amendment knowing it would not get 60 and vote against Lankford’s amendment. That caused a stir: Sen. Lankford, speaking on the Senate floor, accused Democrats of using a procedural trick to defeat his amendment: “This is the reason people get so angry at Washington, DC.”
AILA urged senators to oppose the Title 42 amendment. Over the past weeks, AILA had asked our members and the public to take action, resulting in 8,000+ messages to Congress on that issue alone. Overall, we urged Congress to “do no harm” to immigrants. We worked with coalition partners to stop an amendment that would have halted hires of IRS agents until 18,000 more Border Patrol agents were hired – a preposterous proposal given the reports of corruption and abuse in the Border Patrol and severe challenges DHS has had hiring qualified agents. Just as ridiculous were two amendments, also voted down, that would have shifted $500 million in the bill intended to ameliorate climate disasters to unnecessary border wall construction and interior enforcement—neither were backed by a justification of need.
In the end, every anti-immigrant proposal that came for a vote was blocked. Proper thanks are due to all the senators who stood their ground and protected immigrants from these nasty and hateful politics. Having advocated for two decades on immigration and refugee rights, I cannot remember another moment immigrants have been at such grave risk and yet emerged unscathed. At a moment in American history when xenophobia is excessively high, we must celebrate the passage of this bill free of any harmful immigration measures.