Senate Republicans are pushing to pass a roughly $72 billion reconciliation bill to fund U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection—the two remaining pieces of Department of Homeland Security funding that couldn't be enacted through the annual appropriations process, according to a new analysis published June 3, 2026, by the R Street Institute. The report warns that the bill faces serious obstacles under the Byrd Rule's "merely incidental" test, which determines whether provisions belong in reconciliation or represent ordinary policy riding inside a privileged budget vehicle. The analysis argues that reconciliation, originally designed to bring spending and revenue laws into conformity with the budget resolution, risks becoming a general-purpose substitute for regular Senate procedures if its limits aren't carefully guarded.
The Byrd Rule, named for Sen. Robert Byrd (D-W.Va.), operates on a simple premise: reconciliation gets special treatment because it's supposed to be a budget process. The rule makes a provision "extraneous" if it "produces changes in outlays or revenues which are merely incidental to the nonbudgetary components of the provision," according to the report. Past rulings illustrate the test's strictness. Proposals to grant lawful permanent resident status through reconciliation failed despite their large benefits-related costs, and the parliamentarian initially rejected outright repeal of the Affordable Care Act's coverage mandates even though the combined individual and employer mandate repeals were projected to save roughly $147 billion over ten years. When the Inflation Reduction Act tied its energy tax credits to paying prevailing wages, that requirement was challenged as "merely incidental" but ultimately upheld.
The report identifies nine principles that help draw the line between permissible and extraneous provisions. Direct budgetary effects carry more weight than indirect ones, while voluntary provisions are easier to defend than mandates on private parties. Changes to existing programs face fewer hurdles than creating new ones, though the line between "modifying" and "eliminating" remains blurry—the parliamentarian advised that outright repeal of the individual mandate was impermissible, but that zeroing out its penalty complied. The report notes that some subjects are especially hard to move because their central effect isn't budgetary, with immigration status and criminal law among them. According to the analysis, "even very large budgetary effects can be 'merely incidental' if the policy effects are significant enough."
The report emphasizes that the parliamentarian is not the ultimate arbiter, despite common perception. The Byrd Rule isn't self-enforcing—a senator must raise a point of order, the parliamentarian advises the chair on how rules and precedents apply, the presiding officer rules, and if necessary, the full Senate decides whether to uphold or overturn that ruling on appeal. The authors write that "anything that can be done through reconciliation can be undone through it," warning that a majority that stretches the process today may be writing the procedural playbook for a future majority it doesn't control. Senators can waive the Byrd Rule with the required supermajority, or they can choose to ignore institutional limits and bear the consequences.
The report's central concern is whether reconciliation will remain a limited budget process or become the latest workaround for a Senate that no longer wants to do the harder work of legislating. Both parties have incentives to stretch reconciliation whenever they hold power, especially when they can't pass the same policies through regular order. The analysis concludes that institutional responsibility ultimately belongs to senators, not to the parliamentarian, and that restraint matters even when the immediate policy goal is appealing. The question isn't whether reconciliation can be stretched—it can be—but whether senators want to preserve its role as a genuine budget tool or convert it into a standing exception to the filibuster.