Summary: Immigration Provisions in the Budget Resolution

On August 11, the U.S. Senate passed a $3.5 trillion budget resolution after a 50-49 vote along party lines. The budget resolution is the first stage of the budget reconciliation process, which allows Democrats and the Biden administration to avoid a Senate filibuster and pass legislation with a simple majority. The resolution — which will serve as a blueprint for the final spending bill — provides targeted spending and revenue levels for a variety of policy changes, including multiple immigration provisions. In addition, during the Senate’s deliberation on the budget resolution, five non-binding, immigration-related amendments were debated, three of which passed.

In the coming weeks, the details and extent of the provisions included in the outline will be hammered out by Senate committees in the form of an omnibus spending bill.

Immigration Provisions in the Budget Resolution

As passed by the Senate, the budget resolution allocates $107 billion to the Judiciary Committee, including instructions for “lawful permanent status for qualified immigrants” and “investments in smart and effective border security measures.” The budget resolution also includes “border management investments” in its instructions to the Committee on Homeland Security and Government Affairs.

Even though the minutiae of these instructions remain to be hammered out, leading Senate Democrats have said they are hoping to use the $107 billion instructed to the Judiciary Committee to provide a pathway to citizenship for Dreamers, Temporary Protected Status (TPS) holders, undocumented farmworkers, and other essential workers.

Democrats are also planning to allocate approximately $10 billion for smart and effective border security measures focused on infrastructure at legal entry points. According to a July 23 Axios report, the funds could be put toward facilities for handling asylum claims, additional staff for higher cross-border traffic areas, expanding immigration courts to address backlogs, alternatives to detention programs, and repairs of ports of entry.

Immigration-Related Amendments in Budget Resolution

Under budget reconciliation, both the budget resolution and the subsequent spending bill may go through a “vote-a-rama” process before passage in the Senate. Vote-a-rama refers to an accelerated voting procedure in which a large number of amendments can be proposed, and each may be debated for only two minutes before a ten-minute vote. In this case, the budget resolution faced five immigration-related amendments, each introduced by a Republican senator.

The three amendments that passed will serve as non-binding principles for the Judiciary Committee to consider when drafting the omnibus budget bill. They include the following:

1. Senator Bill Hagerty (R-Tennessee) proposed Amendment 3742 to provide sufficient resources to U.S. Immigration and Customs Enforcement (ICE) to detain and deport a higher number of undocumented immigrants who have been convicted of a criminal offense in the United States. The amendment passed with a 53-46 vote.

2. Senator Roger Marshall (R-Kansas) proposed Amendment 3797 to allocate resources for testing and treatment of migrants at the border and for quarantining those who test positive for COVID-19. The amendment also suggests a prohibition on the transportation of migrants who do not have a negative COVID-19 test. The amendment passed with a 88-11 vote.

3. Senator Jerry Moran (R-Kansas) proposed Amendment 3795 to strengthen the enforcement of immigration laws to address the “humanitarian crisis” at the southern border. The amendment also suggests increasing funding for border security measures, improving asylum processing, and reducing immigration court backlogs. The amendment passed with a 76-23 vote.

Besides the three immigration-related amendments that passed, the following two immigration-related amendments were not adopted by the Senate:

1. Senator Ted Cruz (R-Texas) proposed Amendment 3781 to prevent or limit the Department of Homeland Security (DHS) from departing from the use of Title 42 to expel unauthorized migrants. The amendment failed to pass after a 50-49 vote.

2. Senator Chuck Grassley (R-Iowa) proposed Amendment 3650 to prevent undocumented immigrants who have been convicted of a crime or have pending criminal charges from being granted lawful permanent residence in the United States. The amendment failed to pass after a 50-49 vote.

The Path Ahead

The passage of the budget resolution in the Senate is an early step in the long budget reconciliation process. Next, the budget outline will be considered by the House of Representatives. Upon passage by the House, congressional Democrats will have to craft — and pass — a spending bill that responds to the instructions laid out by the budget resolution.

In order to qualify for budget reconciliation, the spending bill crafted by Democrats must have a non-incidental impact on federal spending and revenues. The Senate parliamentarian will decide if the included immigration reforms are sufficiently related to spending or revenues to be allowed into a final package.

If the parliamentarian approves the provisions, the final bill will still need to pass both chambers of Congress. Should it get to the Senate floor, the bill will only need a simple majority to pass — although it will likely face another round of rapid-fire amendments.

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