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Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But 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, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, affirmative grants, general public information, and finally class-based rules. The essay summarizes the distinct legal issues that arise with each one. I argue that most of these categories of executive action do indeed have solid legal foundations. But the last – class-based rules – raises important questions about separation of powers.

Publication Citation

92 Wash. U. L. Rev. 1083 (forthcoming 2015).