Washington, D.C., January 22, 2021: On his first full-day in office, President Biden announced immigration reform as a key initiative of his administration. The outlines of his immigration reform plan have been made public, as has the name of his signature immigration bill, the U.S. Citizenship Act of 2021.

The text of the U.S. Citizenship Act of 2021, however, has remained a closely held document.

Donoso & Partners understands that it has been shared with Democratic leadership in the House and Senate, and that its lead sponsor in the Senate will be Senator Menendez (Democrat from New Jersey).

The key question on everyone’s mind is this: can the U.S. Citizenship Act of 2021 obtain approval through the U.S. Senate?

What it Takes to Enact a Bill in the U.S.

The U.S. Constitution provides that proposed legislation — referred to as a bill in the U.S. — requires approval from both chambers of Congress (the House of Representatives and the Senate), and the President.

In practice, however, things are a bit more complicated.

A simple majority of 50% plus 1 is enough to pass legislation in the House of Representatives (which is the lower chamber of Congress). This is helpful for Biden’s immigration reform bill. Biden’s Democratic Party currently has a majority of 10 votes in the House of Representatives (221 Democrats versus 211 Republicans). Plus, under the leadership of House Speaker Nancy Pelosi, Democratic priorities will likely pass through the House with determined efficiency.

A simple majority of 50% plus 1, however, is not always sufficient to pass bills in the Senate. The Senate has 100 seats — 2 for each of the 50 states. Its composition is presently split evenly — 50-50 — between Democrats and Republicans. The tie-breaking vote is held by Biden’s Vice President, Kamala Harris. Thus, in practice in a 50-50 vote, Vice President Kamala Harris will give the tie-breaking vote to the Democrats and legislation will pass.

Yet, that is still not enough to ensure passage of immigration reform in the Senate because of an internal rule known as the “filibuster.”

What is the Filibuster?

Under the internal rules of the U.S. Senate, a Senator is authorized to speak for as long as they wish and on any topic they choose, unless “three-fifths of the Senators duly chosen and sworn” vote to bring debate to a close (called “cloture”). This rule allows one Senator to delay passage of a bill for as long as they can speak, and, when a group of Senators acts in concert, they can speak continuously. In practical terms, passage of a bill can be delayed indefinitely if sufficient opposition to it exists. This is called a “filibuster”.

The only way to overcome a filibuster is to garner support from at least 60 out of the total of 100 Senators (i.e., 3/5 of the Senate’s members).

The occurrence of filibusters are rare, and tend to fail. Nevertheless, the potential for days or weeks of delay in the Senate from a filibuster — particularly a filibuster that is widely supported — is a real threat to most legislation.

There are two important exceptions to the filibuster rule:

(1) Spending bills that determine the allocation of funds to pay for U.S. government operations can pass by simple majority after a maximum 24-hour filibuster in a process known as “reconciliation”.

(2) Presidential nominees for appointments requiring Senate confirmation cannot be filibustered.

Passing Immigration Reform Through Reconciliation

Most commentators believe that the U.S. Citizenship Act of 2021 would face the hurdle of the Senate’s filibuster rule. A 60-vote majority would be required to overcome a filibuster, meaning that Democrats would have to obtain approval for their immigration bill from at least 10 Republican Senators.

Such bi-partisan support seems improbable. The Senate is suffering from a decade of intense political divisions between Democrats and Republicans dating back to the Obama Administration. Republican Senators include a large majority of members elected on anti-immigrantion platforms. And, to top it off, the Senate is still suffering raw wounds left by Trump’s mob sacking the U.S. Capitol on January 6, 2021, and the up-coming impeachment trial #2 of former-President Trump.

Nevertheless, it is likely that Senate Democrats can pass important immigration legislation — including legalization of undocumented workers and adding green card numbers to clear EB2 and EB3 visa backlogs — through reconciliation. The process would hinge on splitting up the U.S. Citizenship Act of 2021 into smaller pieces of legislation and including them and their budget requirements under the “ must-pass” annual spending bills required every year to pay for U.S. government operations, or next pandemic relief bill.

While this process may appear far-fetched, the reality is that many important legislative initiatives in the past three (3) decades have been passed through reconciliation by Democratic and Republican Presidents.

Conclusion

Even though President Biden’s Democratic Party controls both Houses of Congress, passage of immigration reform is sufficiently controversial among Republican Senators as to make it unlikely to pass the Senate with the 60-vote majority required to overcome a filibuster.

The most likely path forward for President Biden’s U.S. Citizenship Act of 2021 is the to split up the bill into smaller pieces and attach those to a spending bill that can be passed through reconciliation with a 50% plus 1 majority in the Senate.

Donoso & Partners, a leading immigration law firm based in Washington, D.C., will continue to report on developments regarding the immigration law and policy through our news section of donosolaw.com.