The laudable goal of increasing accountability in law enforcement could lead to increased surveillance. Perhaps nothing illustrates this danger better than the merger of body camera and facial recognition technology, something some body camera manufactures have already achieved. Strict policies on facial recognition being used on body camera data are not in place at any of the major police departments that either are or soon will be equipping officers with the cameras. This is especially concerning at a time when body cameras are very popular with the American public. But, with restrictions in place, it is possible to increase police accountability while protecting privacy. The risks of using facial recognition technology with body cameras was recently outlined by Constitution Project privacy fellow Jake Laperruque at Cato’s recent surveillance conference. You can watch his presentation here. Laperruque rightly points out some of the most concerning issues associated with facial recognition and body cameras. Police body cameras with facial recognition could be prone to misuse. While this technology could be used to identify violent suspects it’s worth considering that it may also be used to identify those who have outstanding warrants for petty crimes. There is also the possibility of police using the fusion of body camera and facial recognition technology in order to track people. As Laperruque correctly highlights, mobile police with body cameras could allow for surveillance far more intrusive than the stationary CCTV cameras that are ubiquitous in many cities. Some may argue that if you’ve done nothing wrong then you have nothing to hide. But, as Laperruque reminds us, even those taking part in First Amendment protected activities, such as taking part in a protest or attending a mosque, could be identified via body camera, thereby prompting some kind of chilling effect. Pew found that a similar chilling effect affected some Americans who changed their online habits in the wake of the Edward Snowden revelations. One survey respondent said, “I don’t search some things that I might have before,” and another remarked, “I used to be more open to discussing my private life online with my select friends. Now I don’t know who might be listening.” It’s reasonable to think that similar sentiments will accompany the proliferation of facial recognition-equipped police body cameras on display at protests and religious gatherings. These concerns shouldn’t prompt lawmakers to ban facial recognition software being used on body cameras. Good policies can allow for police to use facial recognition software during emergencies. As Laperruque points out, exigent circumstance exceptions to the Fourth Amendment already exist and can be applied to police using facial recognition technology to analyze body camera footage. Laperruque suggests limiting facial recognition to investigations into serious violent offenses and requiring judicial authorization before police use facial recognition to track or identify someone. This will prevent police officers from indiscriminately scouring body camera footage with facial recognition technology in order to build profiles of citizens engaged in legal activity. When considering body cameras we should keep in mind that they can be used as platforms for surveillance technologies. As criminal justice reformers continue to call for the deployment of police body cameras they should remember that body cameras without appropriate policies in place could be used as tools for surveillance rather than increased accountability. Fortunately, as Laperruque shows, policies can be implemented to mitigate this risk. 

Imagine that your company’s board chairman, against the wishes of the board of directors and in contravention of the corporate charter, hires an interim CEO. Despite that illegal action, the interim CEO disciplines you in some manner. Would that discipline be any more legitimate if, two years later, the board finally agrees to hire the CEO, who then retroactively approved his own previous actions?

This is what’s happened at the highest levels of government. When Congress created the Consumer Financial Protection Bureau as part of the larger Dodd-Frank financial reform, it specified that the director was to be appointed by the president “by and with the advice and consent of the Senate.” This placed what’s called an Appointments Clause limitation on the director’s position.

Nearly five years ago, President Obama named Richard Cordray the CFPB director—after Elizabeth Warren’s expected appointment met significant political resistance—during what the president erroneously believed was a Senate recess. (You’ll recall that the Supreme Court unanimously invalidated the National Labor Relations Board appointments Obama made at the same time.) Cordray was only confirmed as the director, in a larger compromise with the Senate, nearly two years later.

In the interim, the CFPB filed an enforcement action against Chance Gordon regarding his provision of mortgage-relief services, and Cordray later ratified it. Gordon challenged the enforcement action as emanating from an unconstitutional authority, but the lower courts ruled against him, finding that the post hoc ratification resolved any Appointments Clause deficiencies. Now Gordon has petitioned the Supreme Court for review.

Cato has filed an amicus brief in support of Gordon, urging the Court to take up the case. Congress created the CFPB with the advice-and-consent requirement for a reason: the agency has vast power with virtually no accountability mechanisms, such that the Appointments Clause provision is one of the few meaningful checks on its activities. Furthermore, Congress did not authorize the CFPB to bring enforcement actions without a duly appointed, Senate-confirmed director.

Advice and consent is “more than a matter of etiquette or protocol,” the Supreme Court held in Edmond v. United States (1997), it’s a structural safeguard intended to curb executive power. Also, when Dodd-Frank first gave the CFPB its sweeping authority to define unfair, deceptive, or abusive acts or practices, it specified that these enforcement powers could not be exercised before a director had been validly appointed. Cordray’s later ratification of his own actions can’t cure the original unconstitutional sin of an unsanctioned prosecution. Only Congress could authorize the CFPB’s use of its awesome powers without first having a fully confirmed boss in place—which Congress purposely did not do.

Allowing Cordray to ratify the agency’s otherwise illegal past conduct would prejudice Gordon’s rights, and those of many other similarly situated individuals and companies. The lower courts have effectively allowed the CFPB—an agency that already possesses massive enforcement powers—to circumvent the Appointments Clause (in violation of Article II) while, at the same time, seizing the ultimate authority over the legal effect of judicial orders (in violation of Article III).

As James Madison observed in Federalist 47, “The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.” The Supreme Court should take up Gordon v. CFPB to prevent this sort of dangerous accumulation of power from happening in the future.

Financial innovations like mobile money have gained fame for transforming commerce in the developing world. But they’re also helping the poor escape poverty.

In an earlier post, I showed how over the past few years M‑PESA and other kinds of “mobile money” have made sending money across the world as easy as sending a text message, while also facilitating commerce and financial inclusion in developing nations around the world. It’s only recently, though, that experts have tried to quantify how these products have benefited the poor.

In their recent study “The long-run poverty and gender impacts of mobile money,” Tavneet Suri and William Jack assess mobile money’s contribution to poverty alleviation in Kenya, the country where the “mobile money revolution” began. Since M‑PESA was introduced in March 2007, mobile money has become Kenya’s most popular payments medium. More than 95 percent of businesses and 96 percent of Kenyan households rely on it for their daily transactions. Complementary products like the interest-earning mobile banking service M‑Shwari and retail payment platform Lipa na M‑PESA have only added to its popularity.

From surveys they conducted between 2008 and 2014, Suri and Jack find that M‑PESA has lifted 194,000 Kenyan households—about 2 percent of them—out of poverty. It has done so, they conclude, mainly by making it easier for the poor to protect themselves against negative shocks to their wealth and income stemming from events such as bad harvests and general economic downturns. This enables poor citizens to enjoy a more stable and predictable flow of income and therefore have a smoother pattern of spending over time. It has also given poor families access to safe, interest-earning savings accounts. Suri and Jack also show that those parts of Kenya that have had better access to mobile money “agents” (mini-bank branches that enable M‑PESA customers to deposit and withdraw cash in exchange for mobile money) enjoyed the greatest benefits because they were able to enjoy a steadier flow of income from remittances and make more purchases.

M‑PESA has also helped Kenyans by improving the efficiency of Kenya’s labor market. Now that they’re able to cheaply and reliably “send money home” (Safaricom’s initial slogan for M‑PESA), workers from Kenya’s countryside have been able to pursue higher paying jobs in Nairobi and other urban hubs. The steadier stream of remittance payments from city to countryside has in turn allowed more rural families to pay the tuition required to send their children to school. Mobile banking services like M‑Shwari that are connected to M‑PESA have also given millions of Kenyans access to affordable credit so that they can more easily start their own businesses. These developments have helped spark the recent wave of digital entrepreneurship that has helped earn Kenya the nickname of the “Silicon Savannah.”

One of Suri and Jack’s most interesting findings is that mobile money has been particularly beneficial for Kenyan women. Because of mobile money, 185,000 women have been able to switch from subsistence farming to paying jobs. M‑PESA has also granted millions of women who have never been able to open a formal bank account access to a secure way to save money without fear of having it confiscated by marauding thieves or conniving spouses.

The fact that these financial innovations have had such a positive effect on the Kenyan economy should come as no surprise to anybody who is familiar with the extensive research discussing how financial development contributes to economic development. In fact, many of the channels these scholars have outlined are the same that Suri and Jack identify in their research, namely the increased efficiency of consumption and investment, improved labor market efficiency, and the increased volume of savings and privately-issued credit financing small businesses and other entrepreneurial startups. This encouraging news from Kenya is a powerful demonstration of the claim that “finance matters.”

Although Sari and Jack’s findings are certainly encouraging, the benefits of the digital financial revolution are not being felt equally across the developing world. In my own look into the most effective ways to encourage entrepreneurial innovations like mobile money, I find that such innovations are most likely to thrive where regulators take a “light touch” regulatory approach. That is, they do not stifle financial innovations at the outset by subjecting them to costly regulations such as know-your-customer and anti-money laundering (KYC-AML) requirements, precluding competitors from entering the market, or limiting the types of services that banks can offer their mobile clients. Indeed, the vast majority of mobile money accounts in the developing world are located in these “enabling” regulatory environments that have removed burdensome regulations, invited competition and created an environment of “permissionless innovation.” Finance matters, but countries can only enjoy the full benefits of financial development if their politicians get out of the way of financial progress and innovation by removing regulations and embracing a policy of financial liberalization.

To the extent they’ve been allowed, the benefits of these new technologies have been particularly notable in countries like India, Zimbabwe, and Venezuela that have recently suffered from cash shortages and various political and economic crises. By making it easier for citizens to store their wealth digitally instead of in paper currency and open mobile savings accounts denominated in foreign currencies, mobile money technology has shown enormous potential to place the sort of competitive pressures on government-issued currencies that might compel them to rein in their bad behavior.

Moving forward, policymakers should be encouraged to adopt these enabling policies that invite competing firms to offer innovative new products with a substantially lighter regulatory burden. In countries where politicians are less receptive to allowing financial innovations in the first place, entrepreneurs will have to craft ways for individuals to circumvent the existing government restrictions.

No matter the case, the evidence so far concerning Kenya’s mobile money revolution supplies powerful ammunition to those who believe that, so long as governments don’t stand in their way, market-based financial innovations can play an important role in combating world poverty.

In January 2015, Randy Metcalf was involved in a bar-fight in Dubuque, Iowa, where he seriously hurt a man. Was he prosecuted for assault under state law? No. Because Metcalf allegedly shouted racial slurs during the fight, federal prosecutors indicted him for one count of violating the Hate Crimes Prevention Act of 2009 (HCPA): causing bodily injury “because of the actual or perceived race, color, religion, or national origin of any person.”

The HCPA was enacted under Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Constitution’s ban on slavery—an authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. Before his trial—and ultimate conviction—Metcalf challenged the constitutionality of the HCPA, arguing that racially motivated violence does not fall within congressional authority.

The district court upheld the HCPA, however, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery are. Metcalf appealed his case to the U.S. Court of Appeals for the Eighth Circuit, where Cato has now filed an amicus brief that mirrors two previous ones we filed on the same issue in unrelated cases. We argue that the use of hate-crime laws to sweep intra-state criminal activity—here an allegedly racially motivated bar fight—into federal court has nothing to do with stamping out slavery, and therefore does not fall within Congress’s enumerated powers. 

Not only are federal hate-crime laws constitutionally unsound, but, as George Zimmerman’s trial highlighted, they invite people dissatisfied with a state-court outcome to demand that the government retry unpopular defendants. That implicates one of our most fundamental liberties: protection from being prosecuted twice for the same act. Indeed, this protection from being placed in “double jeopardy” is explicitly enshrined in the text of the Fifth Amendment: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

In the 1920s, however, the Supreme Court recognized a “dual sovereignty” exception to the rule, permitting the federal government to prosecute defendants even after they had endured trial at the state level. This exception emanated from the Court’s narrow concern that weak state enforcement of prohibition laws would disrupt the federal government’s ability to bring bootleggers to justice. Once Prohibition ended, however, the dual-sovereignty exception did not. Not only did it survive, it has thrived in the face of the ever-expanding federalization of the criminal law—a body of law that has now grown so large the number of crimes it covers cannot be counted, exposing more and more people to federal criminal penalties for crimes traditionally reserved to the states to enforce through their police power.

The HCPA is a prominent example of the danger federal overcriminalization has wrought, and is indeed even more susceptible to abuse due to the highly emotional nature of the underlying offenses. Moreover, the HPCA’s coverage is so broad that almost any violent crime could be subject to double prosecution by the state and federal government—and indeed any rape could be seen as hating a particular sex.

In United States v. Metcalf, the Eighth Circuit should end this practice, find the HCPA unconstitutional, and let state authorities deal with the Randy Metcalfs of the world.

Donald Trump has said he wants to cancel President Obama’s Deferred Action for Childhood Arrivals (DACA) program and has implied he would do it on his first day in office. DACA allows young immigrants—known as Dreamers—who were brought to the U.S. illegally as children to live and work here temporarily


Trump recently softened his tone, saying he would try to “work something out” with Dreamers. But DACA probably won’t disappear overnight when Trump assumes office on January 20th in any case. Rather, it will slowly wind down as the immigrants’ temporary work permits expire. Here’s why and how that will happen.



How DACA operates


There are essentially three parts of DACA, which are detailed in a Department of Homeland Security (DHS) memorandum from Secretary Janet Napolitano. The first part is the deprioritization of removal of non-criminal unauthorized immigrants. Currently, the department relies on detailed priorities when deciding whether to remove a specific person. The DACA memo tells DHS agents to prevent Dreamers that they encounter “from being placed into removal proceedings or removed from the United States.”


The second part of DACA essentially formalizes that decision not remove them. DACA recipients apply for and are issued a Notice of Action I‑797 form (below) stating that removal action against them has been “deferred” for two years. Their information is entered into a database, and if it is checked against immigration databases, they are shown as lawfully present in the United States during that time. More than 800,000 young immigrants have enrolled in DACA and received such a letter.



Figure 1: DACA Form I‑797 Notice of Action

Source: Imgur


Finally, this receipt of deferred action authorizes the immigrants to request an employment authorization document (EAD) similar to the one below, which is also valid for two years. Under current law, any person in the United States—legally or illegally—can legally seek employment, but it is illegal for an employer to employ a noncitizen who is not authorized to work. Thus, an EAD is really about authorizing employers to make a hire, not about authorizing the DACA recipient to seek a job.*

What Trump can do about DACA


Trump could theoretically overturn the first part of DACA on day 1, authorizing agents to apprehend and remove DACA recipients. This is very unlikely. First of all, Congress has repeatedly enacted Homeland Security appropriations bills that instructed the president to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Second, while it is possible that Trump could ignore this, he has stated that he will indeed continue to prioritize criminals (one Trump advisor has suggested that immigrants arrested for, but not yet convicted of, serious offenses would also be prioritized). Third, Trump’s vague promise to “work something out” implies at least some unwillingness to go out of his way to deport Dreamers. Fourth, Trump’s unrealistic vow to deport 2 million criminals makes it unlikely he will waste precious resources on low priority, non-criminal cases.


Trump could easily cancel the second part of DACA on day 1, telling U.S. Citizenship and Immigration Services to cease accepting applications for I‑797 deferred action forms. These forms are technically valid for two years, but they clearly state that they were issued as part of DACA. Deleting DACA recipients from ICE databases that list them as “lawfully present” could be more time-consuming, but probably not technically impossible.



Figure 2: DACA-based Employment Authorization Document (EAD)

Source: WangLawOffice


Because employment authorization is dependent on a grant of deferred action, canceling part 2 of DACA would legally end part 3 as well. But in practice, the administration cannot prevent DACA recipients from working until their employment authorization document expires. As can be seen in the EAD above, nothing on the physical document indicates that it was issued under DACA, and employers are legally obligated to accept any facially valid, non-expired form of identification issued by the federal government. There is no electronic way to cancel an EAD, and discriminating against job applicants simply because they are using an EAD is illegal.*



The Obama administration has showed how difficult ending DACA quickly will be


President Obama actually tried to cancel certain DACA EADs in 2015. In 2014, two years after DACA was initially implemented, the Obama administration declared it would expand DACA to a broader group of immigrants and issue 3‑year EADs. When several states sued to prevent implementation of that memo and the Deferred Action for Parents of Americans memo, a judge imposed an injunction against the expanded DACA in February 2015. The Obama administration initially misinterpreted his order and incorrectly continued to issue 3‑year EADs as renewals to the initial group of DACA recipients.


The administration sent or resent 2,600 three-year EADs to DACA recipients after the judge’s order in February. Because the expiration date on the EAD prevented the administration from halting DACA recipients’ employment authorization electronically, U.S. Citizenship and Immigration Services (USCIS) had to individually recoup them. DHS sent out 2,600 letters and called each recipient to inform them that they would be replacing 3‑year EADs with 2‑year EADs. USCIS officials also apparently made visits to some recipients’ “listed address” to collect the 3‑year EADs in person. DHS also said, “If you fail to return your card, USCIS will terminate your DACA and all employment authorizations effective July 31, 2015.” It is not clear how they planned to effectuate this termination.


Ultimately, USCIS failed to recover 22 cards, or failed to receive good cause for not receiving them. As a result, those 22 individuals were “terminated from DACA.” The agency says termination involved sending the following letter to DACA recipients:

Any DACA-based EAD you received (including your recently issued 2‑year EAD) is now invalid. You must return all DACA-based EADs to USCIS immediately. Fraudulent use of your EADs could result in a referral to law enforcement. You are still required to return your invalid EADs to USCIS. As noted in your Notice of Intent to Terminate, USCIS may consider failure to return your invalid EADs a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.

However, this letter failed to provide a statute under which the DACA recipient could be prosecuted, and the immigration statute and two criminal statutes relating to misuse of documents or fraudulent use of documents do not appear to prohibit use of a genuine EAD issued legally to the person who is using it.* In any case, there would be no practical constraint on these DACA recipients seeking employment, since an employer that was unaware of the cancellation could continue to employ them lawfully.* Moreover, there is no indication that these 22 immigrants were in fact removed from the country.


In the end, even when offering to replace EAD cards, DHS needed to send agents to recipients’ homes, and 1 percent of recipients still failed to cooperate. It is easy to imagine how difficult it would be if there was no offer of a replacement. While the fact that home visits were made demonstrates that DHS does have the knowledge and ability to track down DACA recipients in certain cases, it is likely that as soon as any apprehensions were made, other DACA beneficiaries would move.



How DACA would naturally wind down


Even if it wanted to, the Trump administration would likely be dissuaded from ending DACA immediately by the practicalities of cancelling all 800,000 EADs alone. But it makes especially little sense to do this when a majority of the EADs will expire within a year of Trump assuming office in any case. The Obama administration has since 2014 made public quarterly breakdowns of when DACA recipients renewed their status or received their status for the first time. Figure 3 provides those figures with projections for the last three quarters, based on the typical rate of approvals for initial applications and the number of 2‑year renewals during the same quarters two years prior.



Figure 3: Timeline of DACA Approvals—Initial and Renewals—April 2014 to March 2017

Source: USCIS Data Set: Form I‑821D Deferred Action for Childhood Arrivals. July 2016 to March 2017 are projections based on the number of two-year renewals in those months in 2014 and 2015. January to March 2017 is projected based on the percentage of days of the current administration’s term.


This timeline of DACA approvals allows for the creation of a rough timeline of DACA EAD expirations, provided in figure 4. More than 85 percent of all DACA EADs are 2‑year authorizations. Another 108,000 are 3‑year authorizations that were issued in late 2014 and early 2015. Unfortunately, the 3‑year EADs will expire for most receipients in December 2017 or January 2018—sooner than if they had been issued two-year renewals, which they could have renewed in December 2016 and early January 2017, allowing for an extra year of authorization. As a result, there will be a more constant stream of DACA expirations than there were DACA approvals.



Figure 4: Projected DACA Expirations by Quarter

Source: Author’s calculation based on USCIS DACA Approval Figures. See figure 3 explanation.


Approximately 314,000 DACA recipients will lose DACA EAD authorization in 2017—about 38 percent of all DACA applicants. Another roughly 467,000 will lose authorization in 2018—about 115,000 of those will happen in the first quarter of 2018, meaning that DACA will be half over by March 2018.



Figure 5: Projected DACA Expirations by Year

Source: Author’s calculation based on USCIS DACA Approval Figures.

A couple of uncertainties are present in this analysis. First, the administration allows DACA renewal applications up to 6 months in advance, and some DACA renewal approvals occurred before the initial 2‑year period ended, meaning that the administration issues a determination before the new period begins in some cases. In other cases, the administration issued renewals after the 2‑year period was over. Thus, it is possible that the periods of DACA authorization could continue somewhat beyond the 2‑year mark of their approval (though the data is divided into 3‑month chunks, so it cannot be far off). Second, for the same reason, it is possible that the current administration could issue pre-approved EADs before the end of its term. This would obviously require ramping up the already-high current pace of renewals.



Worst case and best case scenario for DACA recipients under President Trump


The worst case scenario for DACA recipients would be that the Trump administration stops accepting new DACA applications and eliminates any kind of priorities for removal, allowing agents to apprehend any unauthorized immigrant that they meet. The administration could further create panic in the immigrant community by targeting certain DACA recipients for arrest, using the address information that they provided as part of their application. At the same time, the Trump administration could potentially threaten to prosecute employers or the immigrants themselves if they use their EADs. This would create chaos for employers and workers, as no employer would know if the EAD they were reviewing was valid.


At the other extreme, the Trump administration could continue the current priorities for removal and allow current recipients of DACA to use their EADs until they expire, while not accepting new applications or renewals. This would be the least controversial and most practical decision that would also be consistent with Trump’s campaign promises.



*The contents of this article are intended to convey general information only and not to provide legal advice or opinions. No action should be taken in reliance on the information contained in this article. If the reader is in need of legal advice, they should contact a licensed attorney.

Think of college, and your mind may well conjure images of ivy creeping up the walls of stately, gray, Gothic stone buildings in which the deepest of learning occurs. Such buildings exist, of course, but reality is not so pleasantly simple: Those buildings cost big money to erect and maintain, money many colleges may not have. What’s more, students often demand that more fun stuff, rather than deep learning, occur inside them. Or so a new report suggests.

“College and university enrollments are, in aggregate, either stable or declining,” intones the report, titled “The State of Facilities in Higher Education: 2016 Benchmarks, Best Practices and Trends.” The paper is from Sightlines, an outfit that provides facilities data to academia. “In light of the building boom of recent years, many campuses now have more space to maintain and fewer students to fill it.”

Essentially, the report says that colleges have been on a big building binge, but enrollment has been stagnant or declining. The basic math is concerning: Greater capital costs, plus decreasing revenue, equals trouble.

Has the building boom been driven by an edifice complex — college presidents and faculty love new buildings all over campus that are imposing, cutting edge, or both — or an amenities arms race to bring in students?

It’s probably both, but the report puts the onus on a destructive race to attract increasingly scarce students who demand ever more luxury:

Several campuses, realizing the possibility of a decline in enrollment, used the new construction (especially for housing, dining, and recreation facilities) as a way of attracting additional students. The hope being that the development of new amenities and support services can make a campus more attractive to millennials. According to several campus administrators, today’s student body “expects” high-end dormitories, multiple dining options, and modern fitness and recreational facilities. But fulfilling those expectations comes at a cost.

The report says that for decades, college construction has focused more on creating non-academic than academic space, and about half of all college space today is for non-academic use.

It’s a classic arms race: Colleges frightened of losing tuition dollars feel constant pressure to spend on expensive facilities to compete for students, in the process greatly increasing the danger of becoming even more insecure financially, maybe hopelessly so.

But how can students demand all these pricey things that are often superfluous to learning?

The answer, largely, is that someone else is paying.

Students, like most people, would take nice things, all else equal. But most people are constrained by cost: They often can’t afford, or cannot justify, spending their hard-earned money on many lovely but expensive items or services. The vast majority of students, however, pay for college in part with someone else’s dough.

Much of that is in the form of direct taxpayer subsidies to public institutions, which enroll about 73 percent of all students, and in 2015 absorbed around $87 billion in state and local subsidies. Then there is federal student aid, including grants, loans, work study, and tax benefits, which totaled $158 billion in 2015.

Students can demand so much because, in large part, you and all your taxpaying friends are footing the bill.

College campuses are often covered in buildings that feel grand, almost mythical. But they are rooted in gritty reality: Someone’s got to pay for them, and that’s getting harder to do. Maybe the solution is to have those who demand the good life pay for it themselves.

[Cross-posted from the Washington Examiner’s Beltway Confidential blog]

Several senators have introduced bills this month to prevent the elimination of President Obama’s Deferred Action for Childhood Arrivals (DACA) program. DACA has granted work permits and lawful presence to more than 800,0000 young immigrants—known as Dreamers—who were brought to the U.S. as children. It would be an unquestionably positive thing for the United States if one of these bills becomes law, but DACA had a flaw that Congress can correct: it included only those young immigrants who are here illegally, excluding children of immigrants who came to the United States legally.

It may seem that these immigrants do not need help since they have a legal status, but unfortunately, under America’s dysfunctional immigration system, many thousands of young legal immigrants are forced to leave, even though they followed the rules. Because these new bills continue DACA as is, they fail to address this major problem.

Here is how many young legal immigrants end up in this situation. Immigrants often initially enter the United States on work visas, such as the H‑1B visa. H‑1B visas allow skilled foreign workers to work in the United States for up to six years. Their spouses and minor children can also enter with them on H‑4 visas. If an employer sponsors them for a green card—or permanent residency—the H‑1B worker with their spouse and minor children can remain in the United States beyond the six-year limit until a green card is available. Then, the worker, their spouse, and minor children can adjust to permanent residency.

This system would work fine in theory. But for various reasons—1) because far more H‑1Bs and H‑4s are issued than green cards, 2) because the U.S. discriminates against immigrants from populous countries under the “per-country limits,” and 3) because spouses and minor children are not counted against the H‑1B limit, but are counted (erroneously) against the green card limit—long backlogs develop for immigrants from certain countries. As I’ve written before, no one even knows how long these legal immigrants will have to wait.

The children of H‑1B workers suffer the most under this flawed system. Even though they are in a legal status, they are prohibited from working legally in the country that is their home. Worse still, even though they grew up in the United States, they become ineligible for their status once they reach the age of 21 as they are no longer a “minor” child of an H‑1B. Simultaneously, they lose their eligibility for a green card under their parents’ green card category, even if they had been waiting in line for years

These two problems are known as “aging out.” Although no one is counting, they affect tens of thousands of legal immigrant children every year. Essentially, these legal immigrants are subject to deportation solely because they grew up, and America is losing talented, already assimilated workers.

DACA could have helped these young people because it provided work permits and lawful presence to immigrants under age 31 who came to the United States before age 16. Unfortunately, the Obama administration included a requirement that an immigrant is eligible under DACA only if they had no “lawful status on June 15, 2012” when the Obama administration created the program. In other words, unauthorized immigrants whose parents violated the law benefited, while those immigrants whose parents followed the law did not.

Here are five ways to address this problem.

1. Grant status and work authorization to legal immigrant Dreamers who otherwise meet the criteria for DACA in any bill extending DACA (which is essentially what the 2013 Senate-passed reform bill did).
2. Authorize spouses and children of H‑1Bs for work authorization. Banning legal immigrants from working is counter to America’s economic interests.
3. Prevent aging out of green card petitions (which the Senate bill also did).
4. Allow children of H‑1Bs who have extended beyond the six-year limit to extend their status along with their parents.
5. Fix the three problems with the immigration system that lead to the green card backlog in the first place—too few green cards, limits on individual countries, and counting spouses and children against the green card limits.

DACA recipients are benefiting the United States, but the Obama administration’s decision to close it off from legal immigrants serves no purpose, and Congress has no reason to perpetuate its mistake.