Today, we wanted to offer you an in-depth discussion of the Biden administration’s latest efforts to change immigration law in a very big way. We know many of you are busy and don’t have time for an in-depth read. So for those of you, here is the very short version: The Biden administration is trying hard to pass major legislation that would create a pathway to citizenship for over 11 million undocumented people currently living in the U.S. who have paid their taxes and can pass a criminal background check. But don’t hold your breath, because there are complicated roadblocks in the way that may prevent this proposed law from ever taking effect. 

If you’d like to learn a little bit more about what those complicated roadblocks are, and how Democrats could possibly avoid them, keep reading! 

You probably heard the news that the Democrats now control both the U.S. Senate and the House of Representatives. And, of course, Biden defeated Trump in the race for the presidency. So it seems the Democrats are in control everywhere! Knowing that, why can’t they pass any law they want? The answer boils down to one word: filibuster. What’s that? It’s a fancy word that just means the minority party in the U.S. Senate can stop any laws from passing that don’t have at least 60% support from Senators. Democrats hold only 50% of the seats in the U.S. Senate. Vice President Kamala Harris (a Democrat) is the tie-breaker, which is the only reason the Democrats hold a razor-thin 51% advantage. As a result, no proposed law has a clear pathway to success unless the Democrats persuade 10 Republicans to vote in favor of that law. Sound frustrating? It is! It all boils down to this: the minority can stop the majority from passing legislation using the filibuster. 

There are two potential ways around the filibuster. First, the Democrats could use their narrow 51% majority to eliminate the filibuster. The filibuster can be eliminated if just 51% of Senators vote to end it – and the Democrats have exactly 51%! That sounds exciting, right? It would be, but this is an extremely controversial option. Why? Some people think that the minority should have the right to stop legislation. They think nothing should get done unless it has the support of a supermajority (60%). At least two Democratic Senators agree with this position and will not vote to end the filibuster. Others may secretly agree and just have not publicly said so. Unless all Democratic Senators vote to end the filibuster, it’s sticking around.

The second option is to pass the proposed immigration law (or any other controversial law that won’t get 60% support in the Senate) through a process called “budget reconciliation.” Budget reconciliation is the process of passing laws that affect the federal government’s budget. The filibuster cannot be used during this process. But “budget reconciliation” is intended to be reserved for laws that affect only how much the federal government spends and how much it collects (mainly through taxes). Arguably, creating a pathway to citizenship for millions of undocumented workers affects the federal budget as it could increase tax revenue. But not everyone agrees. And here’s another big issue: one of Biden’s key promises in his campaign was unity – a promise to work with Republicans. He may face loud criticism if he and his Democratic colleagues in the Senate pass important laws like this proposed immigration bill without any Republican support (which is possible using the budget reconciliation process.) 

Basically, the Democrats have a way to get this new immigration law passed if they want to. In fact, they have two ways. They could either end the filibuster or use the budget reconciliation process to avoid the filibuster. But both pathways to success are difficult. And experts fear Democrats will not use either one out of fear of a political backlash. So for now, the future of Biden’s proposed immigration law remains very unclear. 

If you are here without status, or someone you know or love is undocumented, you should take comfort in the fact that laws like this are even being discussed. That is a major change from the last four years under Trump. But serious reform is difficult. For now, we continue to hope for the best and keep a close eye on the news. We will keep you posted with any updates as they happen! 

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