DACA extension should be allowed in Biden's reconciliation bill

By: Dhilan Lavu
Dhilan Lavu is a freshman (C’25) in the College of Arts and Sciences from Bryn Mawr, Pennsylvania. He plans to major in Politics, Philosophy, and Economics with minors in History and Data Analytics.

While Democrats may have unified control of government, the ability of Republicans to filibuster legislation in the Senate means that most of the sweeping reforms Joe Biden promised on the campaign trail will have to be achieved through reconciliation. This is a process through which a simple Senate majority can bypass the filibuster and agree to laws which will affect either government revenues or spending. Since almost all legislation affects the government’s budget in some way, the 1985 Byrd Rule constrains the use of reconciliation by stipulating that the law’s fiscal impact must be significant and cannot be “incidental [1].”

The decision about what qualifies as an incidental or non-significant fiscal impact is made by the Senate Parliamentarian, who is a non-partisan referee of Senate rules. Elizabeth MacDonough, who has held the position for the past decade, ruled earlier this year that Democrats could not include a $15 dollar minimum wage clause into their proposed 1.75 trillion dollar social welfare bill, citing the Byrd Rule. She believed that the fiscal effect projected by the Congressional Budget Office--- an increase in government welfare spending due to heightened unemployment---- was not a motivation for passing it and was therefore incidental [2]. Such a ruling is justified. Obviously Democrats did not want to pass this law in order to provide new welfare services to people who lost their jobs because of the bill itself. In fact, before the CBO projections, Joe Biden argued that a raise in the minimum wage would cause negligible job loss [3]. McDonough should however allow an extension of the Deferred Action for Childhood Arrivals Act (DACA) to be included within a reconciliation bill since it meets all the criteria of the Byrd Rule.

DACA, created by President Obama in 2012, allowed children brought to the United States illegally to periodically apply for work permits, giving them legal American status. However, earlier this year a federal judge in Texas ruled that the creation of such a program through executive action was illegal, so Democrats are now attempting to include a permanent extension of DACA into their reconciliation bill [4].
The budgetary impact of preventing the deportation of the nearly two million DACA recipients or “Dreamers” currently residing in the U.S. is enormous. Even the CATO Institute, a libertarian think tank which tends to oppose Democratic policy proposals, estimated that an end to DACA would cost the government 70 billion dollars over the next ten years [5]. For context, this is considerably more than the 60 billion dollars the government spent on food stamps in 2019 [6]. Most of the cost is attributable to losses in tax revenue. The tax contributions of DACA recipients is relatively high since they must graduate high school, be employed or looking for work, and have no serious criminal record if they want to stay in the U.S [7]. And because most DACA recipients are either still in school or just entering the workforce, tax revenue from them will continue to grow over the next years and decades. In addition to this loss of revenue, the CATO Institute projects that the cost of physically removing two million people from the country would be roughly 10 billion dollars [5]. 

Obviously, the fiscal effects of extending DACA are significant, so the second question is whether they are “incidental.” While critics may argue that the large budgetary effect is secondary to moral or humanitarian considerations that does not necessarily make it “incidental.” If the parliamentarian believes that a major motivating factor for passing the bill is its fiscal impact then it should be allowed under reconciliation. This motivation can be proven by the fact that Democratic leadership cited the economic and fiscal effects of keeping Dreamers in the country as a reason for extending DACA far before the situation in the Senate could have been known. Before the 2020 election, Joe Biden’s official immigration platform pushed for an extension of DACA because recipients would “contribute 460.3 billion dollars to the national GDP over the next ten years” and were “paying taxes [8].” When President Trump threatened to end DACA in 2018, current Senate Majority Leader Chuck Schumer emphasized that “91% of DACA recipients are employed. They are paying taxes, paying into social security. Ending DACA would drain $433 billion from our national G.D.P. over 10 years [9]” During that same senate session, Dick Durbin, the current Senate Majority WHIP, cited the previously mentioned study, saying “The CATO Institute, a conservative think tank, estimates that ending DACA will cost 60 billion dollars [9].” 
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While it is clear that an extension of DACA meets the Byrd Rule’s stipulations of being both significant and non-incidental, the parliamentarian may feel uncomfortable using the reconciliation process on an immigration bill. Yet there is strong precedent to do this. In 2005 Republicans used the reconciliation process to recapture 300,000 green cards which had gone unused over the previous fifteen years. The bill essentially allowed 300,000 more people to acquire green cards over the next ten years. The reason stated by Republicans for using reconciliation was that these extra workers would increase tax revenues [10]. Yet clearly the taxes gained from adding 300,000 workers would not come close to that added by two million DACA recipients. Therefore, if the Senate Parliamentarian at the time allowed such a bill to be passed through the reconciliation process then MacDonough should absolutely allow an extension of DACA to be included in the Democrats’ reconciliation bill.



[1] Slaughter, Louise M., “Summary of the Byrd Rule,”  U.S. House of Representatives Committee on Rules Majority Office

[2] Super, David A, “Democrats wrong to attack senate parliamentarian,” The Hill, March 3, 2021

[3] Kessler, Glen,  “Fact checking Biden’s claim that with $15 minimum wage, ‘the whole economy rises’” The Seattle Times, February 9, 2021

[4] De La Hoz, Felipe, “Congress Might Finally Pass Immigration Reform in a Very Strange Way,” Slate, July 16, 2021[5]  Brannon, Hike, “The Economic and Fiscal Impact of Repealing DACA,” Cato Institute, January 18, 2017[6] “Total costs of the U.S. supplemental nutrition assistance program (SNAP) from 1969 to 2020” Statista, January 2021

[7] “What are the eligibility requirements for DACA?” CitizenPath, Immigration forms made simple, Nov 12, 2021

[8] “THE BIDEN PLAN FOR SECURING OUR VALUES AS A NATION OF IMMIGRANTS” Joe Biden, Kamala Harris Platform for Immigration Reform

[9] “House and Senate Democrats on DACA Program” C-Span, September 6, 2017

[10] “Houses Passes Budget Reconciliation Bill” American Immigration Lawyer Association, November 21, 2015

​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.