The Senate parliamentarian was an INS prosecutor because of course she was

The Senate parliamentarian has one last “ruling” to make -- it’s not actually a ruling but senators pretend it is, which then gives it the force of a ruling -- on whether the new approach to immigration reform Democrats have worked to include in their budget reconciliation package can pass Byrd rule muster. 

The details are beside the point: There are parliamentary experts who can make arguments about the provision’s compliance on both sides. So it’s a judgment call. That makes the background and politics of the person making the judgment call of central importance.

The vocation of the parliamentarian, Elizabeth MacDonough, before she worked in the parliamentarian’s office, is rather relevant to the question of that judgment: It turns out she worked for Immigration and Naturalization Services (INS) doing immigrant detention and deportation-related work. That’s been sort of known in the Senate, but is the subject of a new story in the online outlet Latino Rebels. 

At a commencement address in 2018, she talked about her work vaguely. 

Her prior work has gone largely unnoticed, but the Refugee and Immigrant Center’s Texas chapter previously called MacDonough out for it, saying that her role is supposed to be that of an unbiased referee. “The Parliamentarian is supposed to be the nonpartisan referee of the Senate’s rules, but MacDonough is not an impartial voice on the issue of immigration. Before becoming the Senate Parliamentarian, MacDonough worked as a trial attorney handling immigration cases for the U.S. Department of Justice. As someone who has worked to deport people, she cannot be trusted to rule objectively on immigration issues.”

If the parliamentarian offers an opinion that the provision is kosher, then it can go into the bill. If she says no, then it sets off a big fight, because the president of the senate, Kamala Harris, is fully within her right to ignore MacDonough’s advice and include it anyway. People angry at that decision would need 60 votes to take it out. But they could also threaten to simply take the entire bill down. But would Manchin do that? Who knows. Manchin might take the whole thing down anyway. 

The news that MacDonough served as a deportation prosecutor gives Harris that much more reason to ignore her opinion. From an immigrant perspective, it must be wild to learn that the fate of the legislation is in the hands of somebody who used to do deportations. But from a bias perspective, there’s genuine reason to believe that her experience working in the field of immigratrion has distorted her sense of perspective on the question. 

After she nixed the minimum wage from reconciliation, she issued a one line advisory opinion. No explanation, no analysis, nothing but a no. That was absurd, she was told by Democratic leaders. She’s a staffer; if she’s asked for an opinion, they dont want a yes or no, they want a real analysis. The White House office of legal counsel, if they’re asked to weigh in on a legal question, prepare a memo for principals to review. They don’t just say, yes, you can drone strike weddings, or no, you can’t. 

So when she rejected the first immigration provision, MacDonough laid out her reasoning. And buried in it is evidence of clear bias but not necessarily in the way you’d think. She writes:

"The reasons that people risk their lives to come to this country – to escape religious and political persecution, famine, war, unspeakable violence and lack of opportunity in their home countries –cannot be measured in federal dollars.  The same is true of the value of having the security of [lawful permanent resident] status in this country.”

In other words, the policy is so profoundly important, that it can’t be counted in terms of dollars, and therefore, even though it has a massive budget impact, it can't be thought of as something that can go through reconciliation. But MacDonough’s experience with immigration is distorting her view of it. She’s worked in it, so she understands how important it is. But lots of things are super important. A climate activist would rightly say that creating a sustainable climate for future generations can’t be measured in federal dollars. A health care activist would say that saving lives by expanding health insurance coverage can’t be measured in federal dollars. An environmentalist would say that drilling in ANWR creates immeasurable and irreversible destruction to the habitat, to the planet’s beauty, etc. And MacDonough has greenlit all those things for reconciliation.  Yet in her opinion, she treated immigration reform differently, as if benefits to immigrants are beyond the scope of reconciliation -- but somehow rescuing the planet from climate disaster is not? 

MacDonough did not respond to a request for comment.

Earlier today, Joe Manchin demanded House progressives get out of the way and let the bipartisan infrastructure package pass, and only then will he say whether he’ll support the reconciliation bill. Progressives capitulated, and have agreed to vote for both when they’re ready this week. The bipartisan bill will go to the president, while the major legislation will go to the Senate, where its fate will be in Manchin’s hands, with effectively nothing progressives can do about it. "It’s time to call his bluff, these bills will pass the house and everyone will get to see if Manchin is willing vote it down. It is also time to see if the President [can] get his friend on board and get the votes for his agenda,” Rep. Ilhan Omar told me. Some thoughts on it here.