PART VII
Executive Options Under Existing Law
A. Purpose of This Section
Having examined the historical, statutory, and constitutional framework of Reconstruction, this memorandum now identifies categories of executive action that may be considered by the President.
These categories are presented to distinguish between actions that may already fall within existing executive authority, actions requiring additional legal review, and actions that would require congressional approval.
Nothing in this section should be construed as recommending action beyond the constitutional authority of the Executive Branch.
B. Category One: Actions Potentially Within Existing Executive Authority
Subject to review by the White House Counsel, the Attorney General, and the Office of Legal Counsel, the President may consider actions such as:
1. Directing a Comprehensive Executive Legal Review
The President may request that appropriate executive offices conduct a comprehensive review of Reconstruction-era statutes, constitutional provisions, historical materials, and their present legal status.
Such a review would be advisory in nature and consistent with the Executive Branch’s responsibility to understand and faithfully execute federal law.
2. Requesting Opinions from the Office of Legal Counsel
The President may seek formal legal opinions concerning questions arising under existing federal statutes and constitutional provisions.
Such opinions assist the Executive Branch in determining the lawful scope of presidential authority.
3. Directing Historical and Legal Research
Federal agencies may be directed, consistent with their lawful authority, to compile historical and legal materials relevant to Reconstruction, including statutes, executive documents, congressional records, and judicial decisions.
The purpose would be to inform executive decision-making rather than to predetermine policy outcomes.
4. Public Constitutional Education
Consistent with applicable law and available appropriations, the Executive Branch may encourage public education concerning the constitutional history of Reconstruction through speeches, reports, educational initiatives, and partnerships with appropriate institutions.
Such educational efforts would not alter existing law but could contribute to greater public understanding of the Nation’s constitutional development.
C. Category Two: Actions Requiring Additional Legal Review
Certain proposals may fall within executive authority only after careful legal analysis.
Examples include:
- administrative interpretations affecting existing federal programs;
- executive guidance concerning implementation of existing statutes;
- interagency initiatives involving Reconstruction-era authorities; and
- recommendations concerning the continued legal significance of particular statutory provisions.
Before any such action is undertaken, the Executive Branch should determine whether existing law authorizes the proposed measure and whether judicial decisions impose relevant limitations.
D. Category Three: Actions Requiring Congressional Authorization
Some proposals would require legislation rather than unilateral executive action.
Examples may include:
- creation of new federal programs;
- establishment of permanent commissions by statute;
- appropriation of federal funds beyond existing authority;
- amendment of existing statutes;
- creation of new legal rights or obligations.
Where legislation is required, the appropriate constitutional course is for the President to recommend measures to Congress pursuant to Article II while respecting the legislative authority vested in Congress.
E. The Importance of Constitutional Sequencing
This memorandum recommends that constitutional review precede significant policy proposals.
The sequence is important.
First, determine what existing law provides.
Second, determine the scope of executive authority.
Third, identify questions requiring congressional action.
Only then should broader policy initiatives be considered.
This approach promotes constitutional fidelity, reduces institutional conflict, and ensures that executive action rests upon a sound legal foundation.
F. Recommendation
The author respectfully recommends that the President direct the appropriate executive officers to determine:
- what Reconstruction-era authorities remain operative;
- what responsibilities, if any, continue under present law;
- what actions may lawfully be undertaken by the Executive Branch; and
- what matters should be referred to Congress for legislative consideration.
Such a review would permit future policy decisions to rest upon a comprehensive understanding of the governing constitutional and statutory framework.
Transition to Part VIII
The memorandum has now established:
- the historical record;
- the statutory framework;
- the constitutional framework;
- the interpretive questions;
- and the range of potential executive actions.
The final substantive section turns to the broader objective that underlies the memorandum:
PART VIII
Constitutional Review, National Reconciliation, and Civic Education
This final section is intentionally different. It is not primarily about legal authority. It explains why the requested executive review matters from the perspective of constitutional governance. It discusses the value of historical understanding, civic literacy, and national reconciliation while remaining careful not to overstate what law alone can accomplish.