Lawrence A. Cunningham
Politics, North America
DACA applicants should consider applying contract law to their unusual situation and seek assurance of due performance.
Polarizing discord over the constitutionality and prudence of the Deferred Action for Childhood Arrivals (DACA) program obscures more reasonable accord. Specifically, there is a credible case that DACA creates contracts that the government is honoring—despite mixed messages from President Donald Trump.
There are at least three ways to see DACA, established in 2012 by the Obama administration, as creating contractual government duties. For one, the program creates a framework to form traditional contracts. The memo creating DACA directed agencies announced that applicants could—in exchange for identifying themselves and supplying information necessary for a background check—receive deferred deportation for two-year periods and other benefits. The transaction meets the three elements of contract formation: a participant’s application is an offer, the authorities’ grant of it an acceptance, and the swap of information for benefits is what the law calls “consideration.” To repudiate the government’s promise would be a breach of contract.
The U.S. Supreme Court has upheld similar government promises as contracts, arising out of the savings and loan crisis of the 1980s. A federal agency induced healthy thrifts to acquire ailing ones by promising favorable regulatory accounting treatment. Congress subsequently forbade using that treatment, and several thrifts successfully sued the government for breach of contract.
Another way to see DACA as forming contracts is to view the government policy as contract law treats rewards—such as for finding lost pets or sampling an innovative product. Offers of reward are accepted by performance, in DACA’s case by eligible people filing applications. In these cases, once performance begins, the other side cannot back out—an offer cannot be revoked after the pet hunt or product sampling starts.
One objection to calling DACA arrangements contracts is a disclaimer in the 2012 memo: “This memorandum confers no substantive right.” Materials also declare that government “can terminate or renew deferred action at any time, at its discretion.” Taken literally, these words may negate contract law’s requirement of an exchange, as the government denies giving anything at all. That could defeat a claim of contract.