Democrats have proposed  using the reconciliation process to give specific categories of illegal aliens lawful permanent resident status. They assert that doing so does not violate the Senate’s unique rules that regulate that process. Proponents of the Democrats’ effort claim  that the Senate created a precedent in 2005 that presently allows senators to include the immigration provisions in a reconciliation bill.
But the Senate did not create a precedent in 2005 that presently authorizes Democrats’ effort to grant lawful permanent resident status to illegal aliens using the reconciliation process. The lack of prior precedents combined with the controversy surrounding immigration policy in recent years suggests that including such provisions in a reconciliation bill violates the Byrd Rule.
Reconciliation is a decades-old process that protects budget-related legislation from filibusters in the Senate. Congress created the reconciliation process in the Congressional Budget and Impoundment Control Act of 1974 (Public Law 93-344 ). Its purpose is to make it easier for the House and Senate – especially the Senate – to change current law to align (i.e., to reconcile) revenue, spending, and deficits/debt levels derived from current law with those that Congress specifies in the annual budget resolution. Unlike most legislation, senators cannot filibuster reconciliation bills – or motions to proceed to reconciliation bills – on the Senate floor.
The Byrd Rule
Senators frequently used the reconciliation process to pass policies unrelated to the federal budget (i.e., extraneous provisions) in the period following its creation. In response, the Senate adopted the so-called Byrd Rule  in the mid-1980s to make it harder for senators to use reconciliation to circumvent the filibuster. The Byrd Rule prohibits senators from including extraneous provisions in a reconciliation bill. The rule stipulates  that a provision is extraneous if it meets at least one of six criteria. For example, a provision is extraneous if it does not produce a change in outlays (i.e., spending) or revenue (e.g., taxes) or if the provision produces changes in outlays or revenues that are merely incidental to its non-budgetary components.
Enforcing the Byrd Rule
Like all Senate rules, the Byrd Rule is not self-enforcing. Instead, senators must take the initiative to enforce it. They do so by raising points of order against provisions in reconciliation bills on the basis that they are extraneous according to one or more of the Byrd Rule’s six tests.
The Senate’s presiding officer makes the initial decision as to whether a provision is extraneous when a senator raises a point of order against it. If the presiding officer sustains the point of order, the provision it targets is removed from the underlying reconciliation bill.
A senator may make a motion to waive a Byrd Rule point of order before the Senate’s presiding officer rules on its validity. An affirmative vote of three-fifths of the senators duly chosen and sworn (60 senators if there are no vacancies in the Senate) is required to waive the Byrd Rule.
The Byrd Rule does not provide clear guidance on what provisions in a reconciliation bill senators should consider extraneous. It requires  the Budget Committee to submit a list of extraneous provisions in a reconciliation bill (or conference report) in the Congressional Record before the Senate debates it. But the rule states explicitly  that “the inclusion or exclusion of a provision shall not constitute a determination of extraneousness by the Presiding Officer of the Senate.” The law gives the presiding officer – and only the presiding officer – the initial authority to determine if a disputed provision violates the Byrd Rule. And the full Senate can overturn the presiding officer’s decision under Article I, section 5, clause 2  of the Constitution and Senate Rule XX .
The Byrd Rule does not explicitly define what “merely incidental” means. Consequently, determining whether a provision is extraneous under the test is often difficult. Instead of defining the term, the rule requires that senators weigh the non-budgetary components against its budgetary impact. As a result, senators look to precedent (i.e., how senators acted in similar situations in the past) for guidance when determining if a provision is “merely incidental.” That is, senators look to what happened in past reconciliation debates to determine whether the budgetary impact of a disputed provision in a reconciliation bill is “merely incidental” to its underlying policy impact. Significantly, no precedent suggests that a pathway to citizenship does not violate the Byrd Rule.
Deficit Reduction Act of 2005
Democrats claim that the Senate created a precedent that permits a pathway to citizenship in a reconciliation bill during its consideration of the Deficit Reduction Act of 2005 (Public Law 109-171 ). But the legislative history of that measure and its immigration provisions demonstrates that the Senate did not create a precedent as some observers presently claim.
Congress’s Fiscal Year 2006 budget resolution (H. Con. Res. 95 ) directed eight Senate committees to report policy changes in their jurisdictions that would reduce outlays by a specified amount. For example, the FY06 budget resolution directed  the Judiciary Committee – which has jurisdiction over immigration and naturalization policy in the House and Senate – to “report changes in laws within its jurisdiction sufficient to reduce outlays by $60,000,000 in the fiscal year 2006 and $300,000,000 for the period of fiscal years 2006 through 2010.”
The Budget Committee merged the separate titles into one reconciliation bill after the committees reported their respective titles. The Budget Committee reported the omnibus reconciliation bill (S. 1932) to the full Senate on October 27. The 1974 Budget Act requires the Budget Committee to merge multiple committee recommendations into one set of recommendations when the budget resolution directs more than one committee to report them. It stipulates  that the Budget Committee “shall report…reconciliation legislation carrying out all such recommendations without any substantive action.” Consequently, the Budget Committee cannot remove non-Byrd Compliant provisions from the bill that it reports to the full Senate.
Initial Senate Debate
The Senate began consideration of S. 1932 by unanimous consent on October 31. The Senate’s initial version of the Deficit Reduction Act included two immigration provisions  in its Judiciary title. Neither provision appeared on the list of extraneous provisions submitted  by Budget Committee Republicans. Budget Committee Democrats included  a part of one provision – a subsection of section 8001 – in their list of extraneous provisions. In contrast to Democrats’ present claims, Democrats in 2005 claimed that the provision concerning the ability of the Attorney General or the Homeland Security Secretary to adjust the status of certain aliens “to that of an alien lawfully admitted for permanent residence” violated the Byrd Rule because it did not produce a change in outlays or revenues. However, the Senate never adjudicated whether the immigration provisions were extraneous to the underlying reconciliation bill because it did not produce a change in outlays or revenues.
During the floor debate on S. 1932, the Senate rejected an attempt by Robert Byrd, D-W.Va., to strike one of the immigration provisions in the underlying bill. Byrd did not argue that the provision was extraneous. And he did not raise a point of order against it. Byrd instead offered an amendment to strike the provision increasing immigrant work visas and insert in its place a provision raising the fee imposed on multinational corporations for visa applications. Thus, the Senate’s disposition of the Byrd amendment did not create a precedent that sanctions Democrats’ present efforts to include a pathway to citizenship in a reconciliation bill. Moreover, senators did not mention  the Byrd Rule during the debate on Byrd’s amendment.
The Senate passed S. 1932 on November 3 by a vote of 52 to 47 . The Senate-passed version included the two immigration provisions that the bill had when the debate began. However, that does not, in itself, create a precedent that authorizes similar provisions in future reconciliation bills. This is because the Senate did not adjudicate the question at any point during its debate in 2005. The Senate’s presiding officer did not rule that the bill’s initial immigration provisions were Byrd compliant. The full Senate did not adjudicate the question. The Senate adjudicated only one Byrd Rule point of order during the 2005 debate. And that point of order did not target the immigration provisions in the Judiciary title of the reconciliation bill.
There is a precedent that Senate passage of a budget resolution or reconciliation bill does not automatically create a precedent that all of its provisions are permissible under the rules moving forward. For example, during the Senate’s consideration of the Fiscal Year 2010 budget resolution, Republicans claimed  that several prohibited provisions which senators added to the resolution meant that it was no longer eligible for fast-track consideration on the Senate floor. The Senate’s presiding officer agreed that prohibited provisions were added to the resolution but disagreed that it, therefore, lost its privileged status.
The House subsequently removed the Senate’s two immigration provisions and replaced them with a different immigration provision . Some observers claim  that the Senate’s immigration provisions were removed during the conference process between the House and Senate. But this is incorrect. The Senate was not in a state of disagreement with the House when the House removed the two immigration provisions from the Senate-passed reconciliation bill. And the House’s decision to remove the two provisions has no bearing on what is permissible inside the Senate.
The Senate subsequently struck the House’s immigration provision from the Deficit Reduction Act. As a result, the final version  of the legislation did not include any immigration provisions in its Judiciary title.
Claims that precedents authorize Democrats’ effort to give specific categories of illegal aliens lawful permanent resident status are incorrect. The Senate has not yet formally adjudicated the question.
- “proposed”: https://www.politico.com/news/2021/07/15/immigration-backdoor-499778
- “claim”: https://www.americanprogress.org/issues/immigration/news/2021/07/01/501212/pathway-citizenship-economic-growth-budget-reconciliation/
- “Public Law 93-344”: https://www.congress.gov/bill/93rd-congress/house-bill/7130?q=%7B%22search%22%3A%5B%22cite%3APL93-344%22%5D%7D&s=1&r=1
- “Byrd Rule”: http://s/Reconciliation-Bills-Extraneous-Matters-Riddicks.pdf
- “stipulates”: http://s/Byrd-Rules-Six-Tests.pdf
- “requires”: http://s/Budget-Committee-Submits-Lists.pdf
- “states explicitly”: http://s/Budget-Committee-Submits-Lists.pdf
- “Article I, section 5, clause 2”: https://constitution.congress.gov/browse/essay/artI-S5-C2-1/ALDE_00001041/
- “Senate Rule XX”: https://www.rules.senate.gov/rules-of-the-senate
- “Public Law 109-171”: https://www.congress.gov/bill/109th-congress/senate-bill/1932?q=%7B%22search%22%3A%5B%22cite%3APL109-171%22%5D%7D&s=1&r=1
- “H. Con. Res. 95”: https://www.congress.gov/bill/109th-congress/house-concurrent-resolution/95
- “directed”: http://s/FY2006-Budget-Resolution-109th-Congress-reconciliation-instructions.pdf
- “stipulates”: http://s/310b2.pdf
- “two immigration provisions”: http://s/S-1932-Placed-on-Calendar-October-27-2005-Immigration-Provisions.pdf
- “submitted”: http://s/Example-of-Extraneous-provisions-appendix-B.pdf
- “included”: http://s/Democrats-List-of-Extraneous-Provisions-2005.pdf
- “mention”: http://s/Byrd-Amendment-and-Vote.pdf
- “52 to 47”: https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=1&vote=00303
- “claimed”: http://s/Ensign-Parliamentary-Inquiry.pdf
- “different immigration provision”: http://s/S-1932-Engrossed-in-House-2005-Immigration-Provisions.pdf
- “the final version”: http://s/S-1932-Engrossed-Amendment-in-Senate-2005-no-immigration-provisions.pdf