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Asian American Policy Review

Topic / Gender, Race and Identity

VP Harris Can Grant Citizenship to Over a Million Asian Americans. Will She Do It?

For the millions of undocumented immigrants who have lived in the shadow of deportation for too long, a major expansion of the pathway to citizenship cannot be further delayed. “How much longer am I willing to wait?” asked an undocumented community member interviewed by one of the authors. “The older I get and as time goes by, I want to have clear answers in my life for once. My family and I can’t wait anymore.”

Despite making up less than 7% of the total United States population,[i] Asian Americans constitute over 17% of the country’s undocumented population.[ii] In fact, one out of every seven Asian immigrants is undocumented.[iii] Undoubtedly, securing an inclusive pathway to citizenship is one of the major Asian American issues of our time. With Democrats in tenuous control of Congress and the White House, it seems as though the window for securing this pathway is rapidly closing. Concerningly, the Build Back Better reconciliation package may represent the last opportunity for Democrats to pass a pathway to citizenship during this session of Congress and possibly even this administration.

At this critical juncture, one person stands able to intervene, ensuring that this Congress yields citizenship for all: Vice President Kamala Harris.

This piece briefly outlines the legislative dynamics in play during this Congress as a means to contextualize the situation that Congress, immigration advocates, and the nation’s 11 million undocumented immigrants find themselves in now. We, along with 59 other immigration organizations,[iv] over 90 legal scholars,[v] and over 25 sitting members of Congress[vi] urge Vice President Harris, the proud daughter of immigrants,[vii] to utilize the power granted to her office to ensure that a pathway to citizenship is passed during this Congress.

How We Got Here: The Filibuster and the Byrd Rule in the 117th Congress

On January 5, 2021, Democrats won both runoff races in Georgia,[viii] resulting in a split 50-50 Senate composition. This victory occurred in no small part due to unprecedented turnout among Georgia’s Asian American voters.[ix] Since the vice president has the constitutional authority to cast a tie-breaking vote in the case of a split Senate vote,[x] those victories in Georgia handed Democrats a narrow majority in the Senate, as well as effective control over both houses of Congress and the White House for the first time in ten years.[xi]

However, due to the enduring power of the filibuster,[xii] this effective control does not mean that Democrats have free rein to implement policy. While a bill technically only needs 51 votes to pass the Senate, 60 votes are needed to cut off debate on a bill and move to voting. The filibuster is a technique by which any group of 41 or more Senators threaten to indefinitely extend debate on a bill, preventing the bill from ever being voted on and effectively killing it. The use of the filibuster rose dramatically in the period of divided government during the Obama administration,[xiii] and it is now commonly understood to be a given that any major bill will need at least 60 votes in the Senate in order to pass. Well, almost any major bill.

Where We Are: The Applicability of the Byrd Rule to Immigration

Through a process known as budget reconciliation,[xiv] the Senate can pass a bill with a simple majority, effectively bypassing the filibuster. This is why President Joe Biden, at various points in the year, has focused on implementing his key policies during this Congress through three budget reconciliation packages: the American Rescue Plan passed in March 2021,[xv] the Infrastructure Investment and Jobs Act which garnered enough votes to become law outside of the budget reconciliation process in November 2021,[xvi] and the Build Back Better Act (BBB).[xvii] This last bill, which focuses on social provision, would serve as the means by which Congress would implement a pathway to citizenship.

Unfortunately, each section of a bill being passed through budget reconciliation is subject to the Byrd Rule,[xviii] a Senate rule which states that a given section must have a budgetary impact that is not “merely incidental to the non-budgetary components of the provision.”[xix] In other words, the policy must have a substantial impact on the government’s budget. Furthermore, the impact of the policy on the government’s budget has to be more than “merely incidental” to its political impacts.

These standards raise a number of questions. What is the line between a “merely incidental” budgetary impact and one that is not incidental? How substantial does the budgetary impact have to be? These questions are left unanswered by design so that the Senate parliamentarian, an unelected advisor who provides guidance on Senate rules, can make a case-by-case advisory judgement.[xx]

From January 2021 until September of the same year, scores of progressive advocacy organizations[xxi] and scholars[xxii] meticulously constructed the case that expanding a pathway to citizenship would have more than a “merely incidental” budgetary impact and in fact would be a “perfect fit”[xxiii] for budget reconciliation. In addition to boosting economic growth across a variety of indicators, a major expansion of a pathway to citizenship would substantially[xxiv] impact direct government expenditures by increasing administrative and personnel outlays, along with supplying funds from the application fees provided by newly eligible immigrants.[xxv] Finally, there is precedent for immigration reform being proposed through budget reconciliation and nearly being signed into law.[xxvi] During the 109th Congress, the Republican-controlled Senate passed a reconciliation package that would have dramatically expanded the number of green cards available for applicants. While these provisions were ultimately stripped from the bill, these amendments faced no Byrd Rule challenge and passed the Senate with overwhelming support.[xxvii]

Despite the appropriateness of an expansion of a pathway to citizenship to the Byrd Rule, Senate Parliamentarian Elizabeth McDonough has twice attempted to block immigration from being included in the budget reconciliation process.[xxviii] Her opinion holds that the collection of citizenship provisions originally included in BBB “is a policy change that substantially outweighs [its] budgetary impact.”[xxix] We along with a number of prominent immigrant justice groups argue that the Parliamentarian’s reasoning on this point is flawed in that she grossly undervalues the economic impact that expanding a pathway to citizenship would have. Rather, she relies on an overly subjective notion of the policy impacts of immigration reform while downplaying its documented and proven economic impacts.[xxx] Key members of the House Democratic Caucus agreed with us,[xxxi] also taking issue with the Parliamentarian’s ruling. Fortunately, the Parliamentarian’s advice can be ignored by the sitting Vice President. Should Vice President Harris exercise this right, she will revive an important prerogative of her office, a right invoked by multiple predecessors.

Where We Go From Here: The Role of VP Harris in Securing a Pathway to Citizenship

A sitting vice president’s power to sidestep a parliamentarian’s advisory opinion is attested to by the late Robert Dove, who worked under two Senate parliamentarians and served as Parliamentarian from 1981 to 1987.[xxxii] He pointed out that Vice President Hubert Humphrey of the Johnson administration twice exercised his power to ignore the then-parliamentarian’s advisory opinions. “The year after I came [to the Senate] the Vice President of the United States, Hubert Humphrey, and the Senator from South Dakota at that time, George McGovern, came up with a strategy to change the filibuster rule,” Dove testified, “… The parliamentarian was not [in favor of the Vice President’s strategy], and the Vice President was not ruling based on the advice of the parliamentarian.”[xxxiii]

According to statute, a 3/5 Senate vote is required to overturn a vice president’s ruling or waive the Byrd Rule.[xxxiv] Despite this, Vice President Humphrey yielded to his opponents after losing only a majority vote in 1967.[xxxv] Two years later, Vice President Humphrey again ignored the Senate parliamentarian for filibuster reform. This effort also came to naught thanks to “Southern Democrats and conservative Republicans.”[xxxvi] Despite these setbacks, Humphrey’s efforts firmly established the right of a sitting vice president to ignore a parliamentarian’s advice.

The most recent instance of a vice president invoking this authority occurred in 1975, when Vice President Nelson Rockefeller of the Ford administration ignored the parliamentarian and successfully enacted the filibuster reform attempted by Humphrey six years earlier.[xxxvii] Robert Dove’s testimony provides insight into why so much time has passed since a sitting vice president has exercised this right.

“It was Jimmy Carter who gave the first West Wing office to a vice president, Walter Mondale. That has continued to this day, and basically vice presidents have left the Senate. You just don’t see them. So it has not been my experience to have much of a relationship with a vice president over the years, because they’ve simply been gone,” remembered Dove.[xxxviii]

This history demonstrates that the vice president is wholly and undoubtedly empowered to make a decision contrary to the advice of the parliamentarian. While it is clear that vice presidents who exercise this prerogative face opposition, the threat of reprobation from a faction of the Senate should not deter Vice President Harris from exercising her authority. In demonstrating political strength and ignoring the Parliamentarian’s advisory opinion, Vice President Harris will arguably reaffirm and strengthen the role of the vice president as Presiding Officer of the Senate.

Should Vice President Harris wield her power, dissenting Senators would need to muster 60 votes to overturn her decision. If there has ever been a time for a vice president to assert their prerogative as Presiding Officer of the Senate, that time is now. Democrats have the rare opportunity of controlling the presidency and both chambers of Congress — a privilege that they may only enjoy for a few more months.[xxxix]

Given the total appropriateness of a pathway to citizenship in budget reconciliation,[xl] the popularity of citizenship across party lines, and the immediate need for the Biden-Harris administration to repair its record on immigration, there is a strong need for the Parliamentarian’s decision on immigration to be sidestepped. More fundamentally, however, there is a moral imperative for Vice President Harris to exercise the power of her office. For the millions of undocumented immigrants who have lived in the shadow of deportation for too long, a major expansion of the pathway to citizenship cannot be further delayed. “How much longer am I willing to wait?” asked an undocumented community member interviewed by one of the authors. “The older I get and as time goes by, I want to have clear answers in my life for once. My family and I can’t wait anymore.” From the Chinese Exclusion Act of 1882 until now, undocumented Asian Americans have endured trauma and precarity due to U.S. immigration laws.

Through her constitutional roles as Vice President and Presiding Officer of the Senate, Vice President Harris has the power to clear the path for legislation that will positively transform the lives of hundreds of thousands Asian Americans across the entire country. As the first Asian American vice president, Kamala Harris has the authority to undo a legacy of racial violence and open a new chapter in American history.

All she has to do now is act.


[i] Budiman, Abby, and Neil G. Ruiz. “Key Facts about Asian Americans, a Diverse and Growing Population.” Pew Research Center (blog). Accessed November 18, 2021.

[ii] New American Economy Research Fund. “Combatting the AAPI Perpetual Foreigner Stereotype.” Accessed November 18, 2021.

[iii] Data Bits. “One out of Every 7 Asian Immigrants Is Undocumented,” September 8, 2017.

[iv] Disregard the Parliamentarian’s Advice. “Resources,” October 21, 2021.

[v] Meyn, Colin. “92 Legal Scholars Call on Harris to Preside over Senate to Include Immigration in Reconciliation.” Text. TheHill, October 5, 2021.

[vi] Roll Call. “House Democrats Press Senate Leaders to Override Parliamentarian on Immigration,” October 21, 2021.

[vii] Choi, Inyoung. “For Many Daughters of Immigrants, VP-Elect Kamala Harris Represents Hope.” Insider. Accessed November 18, 2021.

[viii] “Georgia Senate Runoff Live Results” Accessed November 18, 2021.

[ix] NBC News. “Georgia’s Asian American Voter Rates Hit Record High. How Voting Bill Threatens Progress.” Accessed November 18, 2021.

[x] “Article I | U.S. Constitution | US Law | LII / Legal Information Institute.” Accessed November 18, 2021.

[xi] “Party Government Since 1857 | US House of Representatives: History, Art & Archives.” Accessed November 18, 2021.

[xii] “The Filibuster, Explained | Brennan Center for Justice.” Accessed November 18, 2021.

[xiii] Thomson-DeVeaux, Amelia. “Why Are So Many Democrats Considering Ending The Filibuster?” FiveThirtyEight (blog), September 23, 2019.

[xiv] House Budget Committee Democrats. “Budget Reconciliation: The Basics,” August 11, 2021.

[xv] Sprunt, Barbara. “Here’s What’s In The American Rescue Plan.” NPR, March 11, 2021, sec. The Coronavirus Crisis.

[xvi] The White House. “UPDATED FACT SHEET: Bipartisan Infrastructure Investment and Jobs Act,” August 3, 2021.

[xvii] The White House. “President Biden Announces the Build Back Better Framework,” October 28, 2021.

[xviii] Scott, Dylan. “9 Questions about Budget Reconciliation You Were Too Afraid to Ask.” Vox, January 25, 2021.

[xix] Ibid.

[xx] Budget Counsel. “§015b. (CB) Byrd Rule,” November 10, 2016.

[xxi] “Statement: Criminal Bars and Border Enforcement Provisions in Reconciliation Language Around Immigration Invite Byrd Rule Objections – NAKASEC.” Accessed November 18, 2021.

[xxii] Releases, AV Press. “60 Economists to Biden Administration: Include Undocumented Workers in COVID Economic Package.” America’s Voice, February 12, 2021.

[xxiii] Roll Call. “Immigration Reform Is a Perfect Fit for Budget Reconciliation,” August 20, 2021.

[xxiv] Center for American Progress. “Citizenship for Undocumented Immigrants Would Boost U.S. Economic Growth.” Accessed November 18, 2021.

[xxv] “H.R. 1603, Farm Workforce Modernization Act of 2021 | Congressional Budget Office,” April 29, 2021.

[xxvi] “AILA – House Passes Budget Reconciliation Bill,” n.d.

[xxvii] Center for American Progress. “A Pathway to Citizenship and Economic Growth Through Budget Reconciliation.” Accessed December 8, 2021.

[xxviii] PBS NewsHour. “Read the Senate Rules Decision That Blocks Democrats from Putting Immigration Reform in Budget,” September 20, 2021.

[xxix] Ayala, Christine. “Senate Parliamentarian Strains to Block Long Overdue Immigration Reform.” Text. The Hill, September 26, 2021.

[xxx] “VP Harris Can and Should Disregard the Parliamentarian’s Advisory Opinion on Immigration,” n.d.

[xxxi] “FINAL+Letter+to+Senate+re+Immigration+in+BBB.Pdf,” n.d.

[xxxii]  “McConnell Mourns Former Senate Parliamentarian Bob Dove | Republican Leader,” n.d.


[xxxiv] “The Budget Reconciliation Process: The Senate’s ‘Byrd Rule’ – EveryCRSReport.Com.” Accessed November 18, 2021.

[xxxv] “Amending Senate Rules at the Start of a New Congress, 1953-1975: An Analysis with an Afterword to 2015.” Accessed November 18, 2021.

[xxxvi] “SENATE DEFEATS FILIBUSTER CURB; Reverses Humphrey, 53-45, on Ruling Aiding Liberals SENATE DEFEATS FILIBUSTER CURB.” Accessed November 18, 2021.

[xxxvii]  “EXAMINING THE FILIBUSTER.” Accessed November 18, 2021.

[xxxviii] Robert Dove – Oral History about Bob Dole – March 27, 2008, n.d.

[xxxix] Klein, Ezra. “Opinion | David Shor Is Telling Democrats What They Don’t Want to Hear.” The New York Times, October 8, 2021, sec. Opinion.

[xl] Roll Call. “Immigration Reform Is a Perfect Fit for Budget Reconciliation,” August 20, 2021.