Today, the United States Supreme Court ruled on the highly anticipated United States v. Texas case. This case is a momentous one, because it addresses a topic most Americans feel strongly about. In addition to dissatisfaction over the deadlock, Americans should be frustrated because, once again, Congress forced the gavel of the Supreme Court and failed to properly legislate on immigration.

Legally, the issues in this case are very complex, and involve constitutional and administrative law issues revolving around the validity of President Obama to defer deportation of up to five million undocumented immigrants. Those closely following the case are treated to in-depth analysis via the multitude of amicus curiae briefs filed with the Court. What a reader may miss in the pages of legalese are countless citations to immigration laws passed by Congress.

It is Congress, not the President, that managed to draft and pass one of the most complex, comprehensive statutory schemes in U.S. law: the Immigration and Nationality Act (INA). Detailed in the amicus brief filed on behalf of the United States House of Representatives, the legislation spans over 500 pages, and “identifies in painstaking detail who is authorized to live, work, and receive benefits in this country.” It was the first, and arguably only, major overhaul of immigration law in the United States.

Before Congress passed the INA in 1952, immigration laws were scattered in various legal authorities, but almost all were a product of legislation. Many of the previous immigration laws were grossly discriminatory, including laws that gave preference to immigrants from northern and western European nations, as opposed to Asian and African countries. In the last 64 years, Congress continues to make modifications to the statute, but the basic framework and tenants remain the same.

In 1965, Congress passed the Hart-Celler Act, which abolished the national quota, and replaced it with a preference system that prioritized skill and family relationships. After Hart-Celler, however, Congress became so entrenched in party lines that effective modifications to immigration law became almost nonexistent. The chief changes to immigration law during that time included:

  • 1966: the Cuban Adjustment Act afforded Cubans the opportunity to apply for residency in the U.S. after just two years;
  • 1980: the Refugee Act defined refugees as a special class of immigrants;
  • 1986: the Immigration Reform and Control Act required fees when applying for legal status, and began the first employer mandates checking status of employees during hiring;
  • 1990: the Immigration Act, which increased the overall immigration visas cap from 290,000 to 675,000, and created the diversity lottery, which allows for an additional 55,000 visas annually to immigrants from underserved countries;
  • 1996: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIA) expanded the scope of crimes that trigger deportation; and
  • 2005-2006: the REAL ID law that required states to verify a person’s immigration status prior to issuing licenses.

Despite lawmakers’ refusal to legislate on the increasingly relevant issues associated with immigration (like the condition of deportation facilities, whether immigrants should have counsel and due process, and the worldwide refugee crisis) immigrant numbers in the United States continue to grow.

Since 1960, the percent of immigrants in the U.S. jumped from 5.4% to nearly 14% of the total population, and the total net immigration (the difference between the number coming and going) will increase steadily over the next 45 years, totaling 64 million immigrants.

With the number of immigrants skyrocketing in the United States, a worldwide refugee crisis, and millions of undocumented immigrants facing an unknown future, now is the time for Congress to tackle immigration reform legislatively.

Immigration policy is at a critical turning point; the rhetoric of both presumptive presidential nominees indicates that each will take action once in office to influence immigration reform. But it is Congress, not the executive, that must begin proposing smart, effective immigration reform now.