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Republicans’ roiling debate over the use of visas for highly-skilled workers isn’t their biggest immigration quandary — it’s whether to go narrow or big on what could be President-elect Donald Trump’s first major piece of legislation.
The GOP is preparing to take up an infusion of border security money as soon as this month, but it hasn’t settled on how broadly to craft that bill. There’s a twist: To get an immigration bill done without a filibuster, Republicans may need to bend or even break some of the Senate rules.
The border spending bill that Trump and congressional Republicans are mulling would devote as much as $100 billion to border security, including barriers, technology and manpower; it would be paid for by new energy leases. To get it to Trump’s desk without having to seek Democratic votes or changing Senate precedent, however, the GOP will need to limit any policy changes they add to their bill — a central tenet of the filibuster protections they plan to use.
Despite those guardrails, Republicans are already discussing how to make some immigration policy in their border bill. Their plans are still highly fluid, and the Senate parliamentarian will ultimately rule on what can be included in a filibuster-proof bill. If Republicans don’t like that ruling, they could simply vote to overrule or ignore the parliamentarian.
That decision would have sweeping consequences, for this Congress and beyond.
“I’ve heard rumors that there is going to be a movement to pressure Senate Republicans to overrule the parliamentarian in order to enact policy in reconciliation,” retiring Sen. Kyrsten Sinema, I-Ariz., told Semafor.
Sinema warned that doing so would be “a backdoor elimination of the filibuster, and very dangerous.”
While the filibuster-proof reconciliation rules are designed to limit bills to fiscal policy only, Republicans have plenty of reasons to want to push the boundaries. Their biggest motivation is the staying power of laws: Trump will have broad sway over many executive actions on immigration, but President Joe Biden dismantled some of Trump’s first-term moves, and a future Democratic president could do the same.
Sen. John Hoeven, R-N.D., for example, wants to explore codifying the Trump administration’s “Remain in Mexico” policy. It required asylum seekers to stay in Mexico as they await their asylum proceedings.
“President Trump will put that in place on Day One, but that’s a policy the next president can change,” Hoeven told Semafor last month. “If we could do that statutorily, I’m all for it … now, I don’t know if we can, because it comes down to what the parliamentarian determines is eligible.”
Even after Trump waded into a clash among his supporters over the use of highly-skilled worker visas, it’s not clear whether Republicans will seek to address the visa issue in the border bill. During Trump’s first term, some Republican lawmakers sought to restrict some legal immigration and give preferential treatment to high-skilled immigration.
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Sinema knows well the pressure that activists can impose on both parties to bend the rules for filibuster-proof reconciliation bills. In 2021 and 2022, she refused to bend to progressive hopes of overruling the parliamentarian to include immigration reform in Democrats’ party-line agenda.
“I took a lot of heat for that,” she said late last month. “I did repeatedly tell my Democratic colleagues that their attempts to use the reconciliation tool to achieve immigration reform would be against the reconciliation rules, would be ruled out of order and that I would not be willing to overturn.”
In order to use reconciliation, members of Congress must craft legislative language that has a direct budgetary effect. The parliamentarian, a nonpartisan rules referee, did permit Democrats to include some of their environmental and drug pricing policies, and Republicans believe that ruling gives them a path to follow.
“Obviously, the Democrats have created some new precedents that we intend to take advantage of when some of these policy matters have a budgetary impact,” said Sen. John Cornyn, R-Texas, speaking generally of the process.
After both parties present their arguments to the parliamentarian as they near floor action on the bill, the referee ultimately rules which items are subject to a 60-vote threshold in the Senate and which can avoid a filibuster by the minority party (in this case, the Democrats).
Expect the Democrats to challenge as much of the GOP’s plans as they can.
The View From House Republicans
While senators focus on their strategy for a border bill, House Republicans remain less than totally sold on tackling immigration before a big tax bill.
House Ways and Means Committee Chairman Jason Smith, R-Mo., is the leading advocate for one big reconciliation bill rather than the border-then-tax agenda that the Senate prefers. Smith argues that taking on both issues in one bill will make it easier to preserve the 2017 tax cuts that expire at the end of this year.
But that doesn’t mean House Republicans are opposed to packing as much policy change as they can into their reconciliation plans — in fact, they’re eager to.
“The budget reconciliation process is going to be the key of the first 100 days, because in order to fix all the things that we’ve got to fix, we have to squeeze a lot of policy changes through that process,” Speaker Mike Johnson said on Fox News late last month.
Burgess’s view
There’s little risk to Republicans in trying to push the envelope and see what the Senate referee allows in their legislation.
But if the parliamentarian doesn’t rule their way and overrule the referee with a majority vote, Sinema is correct that they would essentially be watering down the legislative filibuster — something Republicans have sworn they won’t do.
That will set a new, boundary-pushing precedent for how all future Senate majorities wield power, and it would cast real doubt on the future of the legislative filibuster.