Article II, the Civil Rights Act of 1866, and the President’s Executive Responsibilities
An Independent Constitutional Question
The preceding Part addressed the possibility of further judicial consideration through the procedures established by Rule 44.
This Part addresses a different constitutional question.
Regardless of whether additional judicial proceedings occur, what responsibilities, if any, does the President of the United States possess under Article II with respect to faithfully executing laws enacted by Congress that remain in force?
This question is distinct from the question of judicial review.
It concerns the Executive Branch’s independent constitutional responsibilities.
Accordingly, the author respectfully submits that the historical and constitutional questions examined throughout this memorandum merit consideration not only by the Judiciary, but also by the Executive.
The Duty to Faithfully Execute the Laws
Article II of the Constitution provides that the President “shall take Care that the Laws be faithfully executed.”
That constitutional duty extends to laws enacted by Congress that remain operative unless repealed, amended, superseded, or otherwise limited according to law.
The author respectfully asks whether the Civil Rights Act of 1866 and related Reconstruction legislation continue to bear upon the Executive Branch’s understanding of its constitutional responsibilities.
The memorandum does not presume the legal answer.
It asks that the question receive careful professional examination.
Executive Review of Reconstruction Legislation
The author respectfully recommends that appropriate executive officials undertake a comprehensive review of the Civil Rights Act of 1866 and related Reconstruction enactments, together with the historical materials surrounding their adoption.
Such a review could include consideration of the statutory text, the legislative history, subsequent constitutional developments, judicial interpretation, and the practical operation of those enactments in the modern constitutional order.
Whether that review ultimately confirms existing understandings or suggests areas requiring further attention is a matter for the Executive Branch, advised by qualified legal counsel, to determine.
Constitutional Literacy and Executive Leadership
Throughout this memorandum the author has emphasized constitutional literacy.
The author believes that renewed public understanding of Reconstruction may strengthen confidence in the Constitution, encourage informed civic participation, and contribute to national reconciliation.
The Executive Branch possesses unique opportunities to encourage lawful public education concerning the Nation’s constitutional history.
Nothing in this memorandum proposes that the Executive dictate constitutional interpretation.
Rather, it encourages thoughtful study, careful historical inquiry, and renewed attention to one of the most consequential periods in American constitutional development.
Separate From Judicial Proceedings
The Executive Branch need not await the outcome of every judicial proceeding before examining laws that remain in force or reviewing the historical foundations upon which executive responsibilities may rest.
The constitutional roles of the Judiciary and the Executive are distinct, though complementary.
For that reason, this memorandum presents the ENFORCE Track as separate from, and not dependent upon, the REHEAR Track.
Whether or not further judicial review occurs, the author respectfully suggests that the Executive may consider the historical questions presented herein as part of its continuing responsibility to faithfully execute the laws of the United States, consistent with the Constitution and the advice of counsel.
Transition to the Presidential Path Forward
The remaining Parts of this memorandum move from constitutional authority to constitutional opportunity.
They consider how renewed historical examination, constitutional literacy, and careful executive leadership might contribute to the unfinished work of Reconstruction while remaining faithful to the Constitution and the rule of law.
The next Part therefore examines what the author describes as the Presidential Path Forward.