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Publication Title

Washington University Law Review

Abstract

With immigration reform stymied in Congress, broad executive action has been President Obama’s signature contribution to American immigration policy. These measures have drawn allegations that the president is refusing to faithfully execute the law. Because backers of executive action have focused on precedents from previous administrations, their arguments imply that there is nothing substantively new about President Obama’s actions. As a result, the legal debate about the scope of the president’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies. This essay aims to add new focus to the debate about President Obama’s immigration policies by defining five distinct types of presidential discretion, identifying the types that have clear legal foundations, and positing that at least two types of discretion used by the Obama administration take executive action into uncharted territory.