A Parliamentary Guide to Enforcing the Byrd Rule in the Reconciliation Process
Heritage Foundation Backgrounder No. 3206, 23 March (2017).
Determining how the Byrd Rule should be enforced in the reconciliation process is not straightforward. Applying the restrictions in the rule’s “merely incidental” test to the effort to repeal and replace Obamacare requires interpreting both the statutory language that created the rule and the targeted provision in the underlying bill. In contrast, the Byrd Rule clearly assigns responsibility for its enforcement to the Senate’s Presiding Officer, who is charged with determining whether or not a provision is eligible to be included in reconciliation. By extension, the Presiding Officer is not required to follow the advice of the Senate’s Parliamentarian regarding how the rule should be applied in particular parliamentary situations. Determining how to enforce the Byrd Rule in such situations where the meaning of the Senate’s rules is ambiguous or silent is consistent with the institution’s past practice.