Constitutional Memorandum to the President of the United States
To: The President of the United States
Through: Counsel to the President; Attorney General of the United States; Solicitor General of the United States
From: Ted Hayes, Mr. Citizen Patriot
Subject: Petition for Rehearing in Trump v. Barbara, Enforcement of the Reconstruction Citizenship Settlement, and Protection of the Primary Subject Beneficiaries of the Civil Rights Act of 1866
Date: July 2026
Status: Master Counsel-Review Draft
QUESTION PRESENTED
Whether the President of the United States should direct the Solicitor General to petition the Supreme Court for rehearing in Trump v. Barbara, No. 25-365, on the ground that the litigation and resulting decision did not adequately adjudicate the distinct citizenship status, history, and remedial protections of the formerly enslaved people and their descendants—the principal Reconstruction population for whom federal citizenship was first expressly secured by the Civil Rights Act of 1866—and whether the President should simultaneously direct a lawful, government-wide examination and enforcement of the still-operative constitutional and statutory protections created to complete emancipation and Reconstruction.
BRIEF ANSWER
Yes, subject to the independent professional judgment of the Attorney General and Solicitor General and to the procedural requirements governing rehearing.
The Supreme Court decided Trump v. Barbara on June 30, 2026. The majority held that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Citizenship Clause of the Fourteenth Amendment. The Court treated the Civil Rights Act of 1866 as an important step toward the Fourteenth Amendment, but ultimately interpreted both enactments as reflecting a broad common-law rule of territorial birth.
The President retains the lawful right to request rehearing through the Solicitor General. Supreme Court Rule 44 permits a petition for rehearing of a merits decision within twenty-five days after entry of judgment. Because the twenty-fifth day following June 30, 2026, falls on Saturday, July 25, Rule 30 appears to extend the filing period through Monday, July 27, 2026, unless the Court enters a different order. Rehearing requires the vote of a majority and must be initiated by a Justice who concurred in the judgment. It is therefore an extraordinary remedy, not an appeal as of right.
A petition for rehearing should not merely repeat the arguments already made about unlawful presence, temporary presence, domicile, or foreign allegiance. It should identify a prior question that neither party squarely presented and that the Court did not separately decide: whether the citizenship created in 1866 for the formerly enslaved population possessed a distinct remedial origin and constitutional purpose that must be recognized before the language of the Reconstruction settlement is applied to materially different populations and circumstances.
The President may also order the executive branch to identify and enforce existing federal rights belonging to the descendants of American chattel slavery. He may direct investigations, collect historical and present-day evidence, enforce valid civil-rights statutes, recommend legislation, prioritize constitutional education, and establish an interagency Reconstruction-completion initiative. But the President may not lawfully nullify, disregard, or command executive officers to violate the Supreme Court’s judgment. The constitutional course is to seek rehearing, pursue appropriate subsequent litigation or legislation, and vigorously enforce all lawful protections that remain available.
The recommended policy is therefore a disciplined two-track strategy:
Rehear: Ask the Supreme Court to reconsider the case in light of the omitted history, identity, interests, and remedial citizenship of the primary Reconstruction beneficiaries.
Enforce: Direct the executive branch, within existing constitutional and statutory authority, to identify, protect, vindicate, and complete the federal government’s unfinished obligations to those beneficiaries.
EXECUTIVE SUMMARY
Trump v. Barbara concerned the citizenship status of children born in the United States to parents who were unlawfully or temporarily present. The Court affirmed the judgment below and held that such children are citizens at birth. The majority grounded its decision in the Fourteenth Amendment, English common law, antebellum legal authorities, the Civil Rights Act of 1866, Reconstruction debates, and United States v. Wong Kim Ark. Five Justices joined the majority opinion. Justice Jackson wrote separately; Justice Kavanaugh concurred in the judgment and dissented in part; and Justices Thomas, Alito, and Gorsuch dissented in whole or in substantial part.
The present memorandum does not ask the President to deny the humanity, dignity, due process, or equal protection owed to immigrants or their children. Nor does it ask the President to govern by personal will in defiance of Article III. It raises a different and antecedent constitutional concern.
The Reconstruction citizenship settlement emerged from a unique American catastrophe. A population had been forcibly transported, enslaved by law, denied the legal capacity to possess national citizenship, and then released into a country whose Supreme Court had declared that persons of African descent could not be citizens within the meaning of the Constitution. Congress responded first with emancipation measures and the Thirteenth Amendment, then with the Civil Rights Act of 1866, and finally with the Fourteenth Amendment.
The Act of 1866 declared that persons born in the United States and not subject to a foreign power, excluding Indians not taxed, were citizens of the United States. It then secured specified civil rights and created federal enforcement machinery against violations. The statute was enacted over President Andrew Johnson’s veto on April 9, 1866.
The central submission is that the formerly enslaved people were not merely incidental examples of a citizenship rule constructed for other purposes. They were the population whose condition made federal citizenship legislation constitutionally and morally unavoidable. They were the persons standing before Congress without the citizenship protection possessed by white citizens, without a foreign country to which they could realistically return, and without meaningful state protection against the newly enacted Black Codes.
Accordingly, the legal meaning of the Reconstruction settlement should not be developed as though its primary beneficiaries were absent from the courtroom. Before the language fashioned to cure their exclusion is extended, analogized, or applied elsewhere, their status and continuing remedial interests should be expressly identified and adjudicated.
Rehearing should therefore be requested not principally to restate the Executive Order’s existing interpretation, but to ask whether the Court decided a broader constitutional question without first resolving the identity, legal injury, and continuing significance of the people whose condition gave birth to the relevant federal citizenship language.
At the same time, the President should direct the executive branch to enforce what is unquestionably lawful and presently available: civil-rights protections, equal access to federal programs, investigation of unconstitutional discrimination, educational initiatives concerning Reconstruction citizenship, and a comprehensive assessment of whether the descendants of American chattel slavery continue to suffer identifiable consequences of governmental action or omission that existing law authorizes the United States to remedy.
I. THE CONTROLLING HISTORICAL PROBLEM
A. Dred Scott Was a National-Citizenship Exclusion
In Dred Scott v. Sandford, the Supreme Court held that persons descended from Africans brought to the United States and enslaved were not citizens of the United States within the constitutional political community recognized by the Court. The decision denied not merely a particular benefit but membership in the national body politic.
The Reconstruction Amendments and civil-rights legislation repudiated that exclusion. The National Archives describes the Thirteenth and Fourteenth Amendments as overturning the constitutional order represented by Dred Scott: slavery was abolished, and national citizenship was constitutionally declared.
That sequence matters. The citizenship enactments did not arise in an abstract seminar concerning every possible future category of migration. They arose because the Republic had enslaved a population and then denied that population citizenship.
B. Emancipation Alone Did Not Establish a Secure Civil Status
The Thirteenth Amendment abolished slavery and involuntary servitude, except as punishment for crime after conviction, and empowered Congress to enforce abolition through appropriate legislation.
But emancipation by itself did not answer whether the freed population possessed national citizenship, enforceable civil rights, legal personhood equal to white citizens, or federal protection against hostile state laws and customs. Southern jurisdictions responded to emancipation through Black Codes and other measures intended to preserve racial subordination.
Congress therefore faced an institutional question: Had the nation merely released enslaved people from legal ownership, or had it accepted them as members of the American political community entitled to federal protection?
The Civil Rights Act of 1866 supplied Congress’s first comprehensive statutory answer.
II. THE CIVIL RIGHTS ACT OF 1866 WAS BOTH A CITIZENSHIP DECLARATION AND AN ENFORCEMENT ENACTMENT
A. Section 1 Expressly Declared National Citizenship
Section 1 of the Civil Rights Act declared that persons born in the United States and not subject to a foreign power, excluding Indians not taxed, were citizens of the United States. It also secured to those citizens the same specified civil rights enjoyed by white citizens, including the rights to contract, sue, give evidence, inherit, purchase, lease, sell, hold, and convey property, and to receive the full and equal benefit of laws and proceedings for the security of person and property.
The comparison to rights “enjoyed by white citizens” exposes the remedial structure of the legislation. White citizens supplied the existing legal baseline. The newly freed population supplied the class whose exclusion Congress was correcting.
The statute therefore performed at least three functions simultaneously. It repudiated the national exclusion imposed by Dred Scott. It established a federal citizenship rule. And it attached enforceable civil consequences to that citizenship.
B. The Formerly Enslaved Population Was the Immediate Constitutional Emergency
The text used universal language, and the legislative debates included discussion of children born to Chinese residents, Gypsies, and other populations. The Supreme Court relied heavily on those statements in Barbara. The Court stated that Senator Lyman Trumbull and other legislators understood the Act to reach broadly.
Those statements must be confronted directly. A serious rehearing petition cannot pretend that they do not exist.
But breadth of language does not erase remedial origin. A law may contain generally worded protections while still possessing a principal subject, precipitating injury, and primary beneficiary. The question is not whether legislators contemplated applications beyond the freed population. The question is whether those applications can be interpreted without separately accounting for the population whose enslavement, emancipation, and exclusion generated the legislation.
The primary-beneficiary analysis therefore does not necessarily require the Court to hold that no other person could ever fall within the Act. It requires the Court to recognize that the Act’s first constitutional work was to repair the status of the formerly enslaved and that this work cannot be submerged beneath later applications.
C. Sections 2 Through 10 Created a Federal Enforcement Structure
The Act was not a symbolic declaration. It created offenses, federal jurisdiction, duties for federal officials, federal process, penalties for obstruction, and mechanisms for appellate review.
Section 8 authorized the President, when he had reason to believe offenses had been or were likely to be committed within a judicial district, to direct the appropriate judge, marshal, and district attorney to attend at a designated place for the speedy arrest and trial of persons charged with violations.
Section 9 authorized the President, or a person empowered by him, to employ such portion of the land or naval forces, or militia, as necessary to prevent violations and enforce the Act.
Section 10 allowed final appeal to the Supreme Court on questions of law arising under the Act.
These provisions demonstrate that Reconstruction Congress did not consider the freed population’s protection a matter committed exclusively to the states. It contemplated active federal enforcement involving the Executive, the federal judiciary, federal prosecutors, federal marshals, and, under the conditions then existing, national forces.
That history supports the present request for executive attention. It does not, however, establish that every original enforcement mechanism may be deployed today without regard to later statutes, constitutional doctrine, appropriations, criminal procedure, military restrictions, and the factual predicates written into the Act itself. Any modern action must be reviewed by the Attorney General, the Office of Legal Counsel, the Department of Defense General Counsel, and other relevant authorities.
III. THE FOURTEENTH AMENDMENT CONSTITUTIONALIZED THE RECONSTRUCTION SETTLEMENT
A. The Citizenship Clause Secured National Citizenship Against Reversal
Section 1 of the Fourteenth Amendment declares:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
It then prohibits states from abridging the privileges or immunities of citizens, depriving any person of life, liberty, or property without due process, or denying equal protection.
The amendment gave constitutional permanence to national citizenship and placed the matter beyond ordinary legislative repeal. In Barbara, the Court described the Fourteenth Amendment as completing and constitutionalizing the work begun by the Civil Rights Act.
That description may be accepted in part without accepting every conclusion the majority drew from it. The Act can be understood as the original statutory declaration and enforcement architecture, while the Amendment can be understood as its constitutional security, expansion, and restraint upon state power.
In that sense, the Act established the house of federal citizenship for the emancipated population, while the Amendment supplied a constitutional lock that no later Congress, state government, or hostile political majority could easily remove.
B. The Act and Amendment Should Be Read Together, Not as Though the Act Disappeared
The majority opinion treated the Act primarily as evidence supporting its interpretation of the Fourteenth Amendment. The concern presented here is that this method risks reducing the Act’s independent remedial identity to a historical steppingstone.
A rehearing petition should ask the Court to determine more precisely:
Whether the Civil Rights Act of 1866 independently declared and protected a historically specific class of federal citizens.
Whether the Fourteenth Amendment constitutionalized that status while also establishing broader protections.
Whether the citizenship of the freed population may be treated as legally indistinguishable, for every constitutional and remedial purpose, from citizenship claimed under later immigration-related circumstances.
Whether the government and courts have a continuing obligation to preserve the identity and interests of the Reconstruction beneficiaries even when construing generally worded constitutional provisions.
The requested inquiry is therefore not limited to exclusion. It concerns constitutional classification, historical fidelity, remedial priority, and the government’s continuing fiduciary-like responsibility to the population it once enslaved and then expressly brought within national citizenship.
IV. THE COURT’S DECISION DID NOT SEPARATELY ADJUDICATE THE PRIMARY-BENEFICIARY QUESTION
A. The Parties Litigated a Different Contest
The government argued that children born to parents unlawfully or temporarily present were not “subject to the jurisdiction” of the United States in the constitutionally required sense. The respondents argued that birth within United States territory, subject to narrow exceptions, was sufficient.
The Court resolved that dispute against the government. Its holding was explicit: children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment.
But neither side was institutionally situated to represent the distinct constitutional interests of the descendants of the American chattel-slave population. The case was structured as a contest between executive immigration policy and the citizenship claims of children born to noncitizen parents.
The freed population appeared primarily as history—an explanation for why the Fourteenth Amendment was adopted—not as a present constitutional community whose legal status and continuing remedial interests required independent consideration.
B. A Historical Population Was Treated as Background Rather Than as a Constitutional Stakeholder
The Reconstruction beneficiaries were central to the origin of the text but peripheral to the framing of the litigation.
This creates the memorandum’s central concern: The case may have interpreted the legal instrument while failing separately to adjudicate the constitutional identity of the people for whom that instrument was first enacted.
A rehearing petition should therefore assert that the Court was not presented with a sufficiently adversarial examination of:
The difference between voluntary migration and involuntary entry through hereditary chattel slavery.
The difference between a person possessing or inheriting a foreign national allegiance and a population deliberately stripped of ancestral nationality and made captive within the United States.
The relationship between federal citizenship and the government’s affirmative Reconstruction obligations.
The continuing legal significance of Congress’s comparison between the freed population and “white citizens.”
The danger of using the remedy created for a uniquely injured population while leaving that population unidentified, unprotected, and materially behind.
C. Rehearing Should Focus on an Omitted Antecedent Question
The strongest rehearing ground is not that the Court failed to read arguments already presented. Rehearing is rarely granted for repetition.
The petition should instead state that the Court decided the immigration-related question without first resolving an antecedent constitutional issue of exceptional importance:
What was the legal character of the citizenship first expressly secured to the formerly enslaved population in 1866, and what obligations accompany that status when the same Reconstruction language is applied to other populations?
The government should explain why the answer could affect the analytical framework, the treatment of the Act, the historical understanding of foreign allegiance, or at minimum the breadth and consequences of the Court’s reasoning.
V. THE PRESIDENT HAS A LAWFUL PATH TO SEEK REHEARING
A. Rule 44 Supplies the Procedural Vehicle
Supreme Court Rule 44.1 provides that a petition for rehearing of a merits judgment must be filed within twenty-five days after entry of the judgment unless the Court or a Justice shortens or extends the period. The petition must state its grounds briefly and distinctly and must include certification that it is presented in good faith and not for delay.
The petition is not subject to oral argument. Rehearing may be granted only by a majority of the Court and only at the instance of a Justice who concurred in the judgment.
The Court decided Barbara on June 30, 2026. The ordinary twenty-five-day period reaches July 25, 2026. Because that date is a Saturday, Rule 30 provides that the deadline ordinarily extends to the next day that is not a Saturday, Sunday, federal holiday, or Court-closure day—apparently Monday, July 27, 2026. Counsel must independently confirm the deadline with the Clerk and examine whether any order alters the computation.
Filing a rehearing petition stays the mandate until the petition is disposed of.
B. The Petition Must Be Directed Toward the Concurring Majority
Because Rule 44 requires action at the instance of a Justice who concurred in the judgment, the petition must speak respectfully and directly to at least one member of the majority.
It should not accuse the Court of racial hostility, treason, intentional disenfranchisement, or contempt of its own authority. Such rhetoric would obscure the legal argument and make the extraordinary relief less likely.
The petition should instead state that the Court’s opinion, despite its extensive historical treatment, did not receive adversarial briefing on a distinct Reconstruction question capable of affecting the constitutional framework.
The petition should invite the Court to protect its own institutional legitimacy by ensuring that the descendants of the enslaved are not treated merely as an historical doorway through which others pass while their own citizenship identity and remedial position remain judicially unexamined.
C. The Solicitor General Should Exercise Independent Professional Judgment
The President may direct that rehearing be evaluated and may communicate the administration’s constitutional objectives. The Solicitor General, however, bears professional responsibilities to the Court and must determine what arguments can be presented in good faith.
The President should therefore direct the Attorney General and Solicitor General to assemble an emergency constitutional working group, review the present memorandum and supporting historical record, consult Reconstruction scholars and counsel representing descendants of American chattel slavery, and file the strongest supportable petition within the Rule 44 period.
VI. “ENFORCE” MUST MEAN LAWFUL EXECUTION, NOT DEFIANCE OF THE JUDICIARY
A. The Take Care Clause Requires Faithful Execution of Law
Article II requires the President to take care that the laws be faithfully executed. This duty encompasses the Constitution, valid statutes, and binding judgments applicable to the Executive.
The President has no general constitutional authority to announce that a Supreme Court judgment will be ignored because he disagrees with its reasoning. Nor may executive officers lawfully deny citizenship documents to persons whom the Court’s binding judgment holds to be citizens, absent a later lawful modification of the governing rule.
Presidential enforcement must therefore proceed through recognized constitutional channels: rehearing, subsequent litigation presenting distinct claims, legislation, rulemaking within delegated authority, investigation, civil-rights enforcement, budgetary proposals, public education, and executive administration of valid federal programs.
B. Section 8 of the 1866 Act Confers Conditional Discretion
Section 8 states that when the President has reason to believe offenses have been or are likely to be committed against the Act within a judicial district, it is lawful, in his discretion, to direct specified federal judicial and law-enforcement officers to attend at a designated place for the speedy arrest and trial of persons charged with violations.
This language does not establish that every social disparity or adverse judicial interpretation is itself a prosecutable offense under the 1866 Act. It requires an actual or likely offense against the Act and must be read alongside current criminal statutes, jurisdictional rules, institutional roles, and constitutional protections.
Nevertheless, Section 8 powerfully confirms the intended executive responsibility. Congress expected the President to act when federally protected civil rights were endangered.
The Attorney General should therefore determine which provisions of the 1866 Act remain operative in their original form, which have been codified or superseded, what present federal offenses correspond to the original protections, and where current enforcement is deficient.
C. Section 9 Must Be Treated With Exceptional Restraint
Section 9 authorized the use of land or naval forces, or militia, as necessary to prevent violations and enforce the Act.
That provision arose during Reconstruction, when organized violence and state resistance threatened the lives and liberties of freed people and federal civil authority was often unable to function.
Nothing in this memorandum recommends domestic military deployment merely to dispute a judicial interpretation, administer ordinary civil policy, or pressure the Supreme Court. Any contemporary reliance on Section 9 would require rigorous legal analysis of its present status and interaction with the Posse Comitatus Act, Insurrection Act, appropriations law, Department of Defense authorities, federalism, and constitutional limits.
The immediate enforcement program should be civilian, legal, educational, investigative, economic, and administrative.
VII. THE PROPOSED PRESIDENTIAL TWO-TRACK STRATEGY
A. Track One: Rehear
The President should immediately direct the following actions:
The Solicitor General should evaluate and, where professionally supportable, prepare a Rule 44 petition arguing that Barbara was decided without adjudication of the distinct status and remedial interests of the primary Reconstruction beneficiaries.
The Department of Justice should review the decision’s treatment of the Civil Rights Act of 1866, the Johnson veto messages, the congressional debates, Dred Scott, the Thirteenth Amendment, the Freedmen’s Bureau legislation, the Reconstruction Acts, the Enforcement Acts, and early postwar citizenship practice.
Counsel should distinguish the proposed argument from the domicile-centered dissents. The petition should explain that the primary-beneficiary issue is not reducible to whether the parents of another child possessed permanent residence. It concerns the legal origin and remedial nature of federal citizenship for a population held as property by American law.
The government should ask, at minimum, that the Court clarify that its decision does not erase, diminish, or render legally irrelevant the distinct Reconstruction citizenship and remedial claims of descendants of the formerly enslaved.
Where full reconsideration is unavailable, the government should request a narrower clarification, modification, or supplemental treatment preserving the independent significance of the 1866 Act and its primary beneficiaries.
B. Track Two: Enforce
The President should issue an executive directive establishing a Federal Reconstruction Completion and Citizenship Protection Initiative.
The initiative should order a government-wide review of existing obligations, authorities, and programs affecting descendants of American chattel slavery. It should not presume a predetermined individual entitlement based solely on ancestry. It should identify legally cognizable harms, statutory authority, present discrimination, governmental responsibility, and constitutionally permissible remedies.
The directive should require the Attorney General to review enforcement of federal civil-rights protections concerning contracts, property, housing, education, employment, policing, voting, public benefits, and access to justice.
The Secretary of Education, working with the National Archives and qualified historians, should develop a national constitutional-literacy initiative explaining emancipation, the Civil Rights Act of 1866, the Reconstruction Amendments, the Enforcement Acts, and the development of federal citizenship.
The Domestic Policy Council should examine measurable present consequences of the nation’s failure to complete Reconstruction, including disparities in property ownership, educational opportunity, homelessness, employment, enterprise formation, public safety, health, and intergenerational wealth.
The Office of Management and Budget should identify existing programs that may lawfully be coordinated toward these objectives and propose any necessary legislation.
The Department of Justice should establish a formal process through which representatives of the descendant community may submit evidence, legal analyses, and proposed remedies.
The administration should transmit to Congress a Reconstruction Completion Report, identifying current constitutional authority, statutory gaps, recommended enforcement measures, and proposed legislation.
VIII. A TEMPORARY POLICY MORATORIUM MAY BE ADOPTED ONLY WITHIN LAWFUL LIMITS
The administration may adopt a temporary internal policy of study, consultation, or nonexpansion regarding discretionary policies related to citizenship documentation or enforcement, provided that the policy does not violate the Court’s judgment, statutory commands, constitutional rights, or the rights of persons already recognized as citizens.
A lawful moratorium could include:
A pause in proposing new legislation that would further alter Reconstruction citizenship doctrine until the beneficiary analysis is completed.
A national consultation period on the history and meaning of federal citizenship.
An interagency review of whether existing definitions, forms, data systems, and public educational materials adequately distinguish citizenship, nationality, immigration status, and Reconstruction-based remedial protections.
A request that Congress conduct hearings on the relationship between the Civil Rights Act of 1866 and the Fourteenth Amendment.
The moratorium must not become an executive suspension of the Constitution or a denial of documents and legal recognition required by Barbara. “Education Before Further Adjudication” is a legitimate policy principle; it is not a license to disobey a binding judgment.
IX. ANTICIPATED OBJECTIONS
A. Objection: The Court Already Considered the Civil Rights Act of 1866
The majority discussed the Act extensively and quoted congressional statements indicating broad territorial citizenship. That is the strongest objection.
The response is that consideration of a statute as historical evidence is not necessarily adjudication of the distinct constitutional identity and remedial status of its principal beneficiaries. The petition must demonstrate why that distinction is legally material, not merely morally compelling.
B. Objection: The Fourteenth Amendment Contains Universal Language
The Citizenship Clause begins with “all persons,” and the Court has interpreted that language broadly. The memorandum does not deny the text’s universality.
It contends that universal wording can coexist with a particular historical wrong, a primary remedial population, and continuing governmental duties. Equal application need not require historical erasure.
C. Objection: The Primary-Beneficiary Theory Creates Racial Castes
The proposed doctrine should not be framed as biological racial superiority, hereditary privilege, or a claim that other citizens are inferior.
It concerns a legally identifiable historical relationship between the United States and persons descended from a population enslaved under American law. Congress and courts routinely consider historically defined classes when addressing treaty obligations, veterans’ benefits, tribal status, restitution, discrimination, and remedial legislation.
Any remedy must remain consistent with equal-protection doctrine and should be carefully tailored to established governmental responsibility and present legal authority.
D. Objection: The President Cannot Reopen a Supreme Court Decision
The President cannot unilaterally reopen it. He can cause the United States, as a party, to seek rehearing through the Solicitor General under the Court’s rules. The Court alone decides whether rehearing will be granted.
E. Objection: The 1866 Enforcement Provisions Are Obsolete
Some original provisions may have been superseded, repealed, codified elsewhere, limited by later enactments, or rendered difficult to apply in their original form.
That is why this memorandum calls for a formal Department of Justice review rather than immediate reliance on every original mechanism. The broader constitutional fact remains: Congress assigned the federal Executive a central role in protecting the freed population’s civil rights.
F. Objection: This Proposal Is Hostile to Immigrants
It need not be.
The government can recognize the dignity and lawful rights of immigrants while also acknowledging that voluntary immigration and forced hereditary enslavement are historically and constitutionally different experiences.
No person must be dehumanized for the descendants of the enslaved to be properly identified. Justice for one population does not require hatred toward another.
X. THE CONSTITUTIONAL AND NATIONAL INTERESTS AT STAKE
The United States is entering the next period of its national life while the central work of its prior founding remains incomplete.
The first founding declared liberty while tolerating hereditary slavery.
The Civil War and emancipation destroyed the legal institution but did not complete the reconstruction of the people it had injured.
The 1866 Act and the Reconstruction Amendments established a constitutional pathway toward citizenship and equality. But the continued social and economic condition of many descendants of the enslaved raises a legitimate national question: Were the laws merely enacted, or were their remedial purposes fully achieved?
The President has repeatedly spoken of an American Golden Age and of citizens who have been forgotten and left behind. No population better fits the constitutional meaning of “forgotten and left behind” than the descendants of those whose uncompensated labor helped construct the nation, whose freedom required civil war, whose citizenship required federal legislation and constitutional amendment, and whose protection required federal enforcement.
Completing that work would not diminish the rest of America. When the waters of restoration of the forgotten and left behind rise, all America rises with them.
Constitutional literacy can become the foundation for renewed education, employment, enterprise, homeownership, public safety, civic responsibility, and national reconciliation. A government that teaches its people why the Reconstruction settlement was necessary will strengthen respect for law among all Americans.
XI. RECOMMENDED PRESIDENTIAL DIRECTIVES
The President should direct the Attorney General and Solicitor General to undertake an immediate, good-faith evaluation of a Rule 44 petition for rehearing in Trump v. Barbara.
The President should order preparation of a legal appendix identifying the specific factual, historical, and doctrinal premises that were insufficiently tested in the litigation.
The President should invite qualified representatives of descendants of American chattel slavery to consult with government counsel before the petition is finalized.
The President should direct the Attorney General to determine the continuing legal status and present-day enforcement pathways of the Civil Rights Act of 1866 and related Reconstruction legislation.
The President should establish an interagency Reconstruction Completion and Citizenship Protection Initiative.
The President should transmit to Congress recommendations for hearings, legislation, appropriations, and national constitutional education.
The President should publicly affirm that the administration will comply with binding judicial judgments while using every lawful constitutional process to seek reconsideration, clarification, and completion of the Reconstruction promise.
XII. PROPOSED FORM OF PRESIDENTIAL DETERMINATION
The President may state:
The Civil Rights Act of 1866 and the Fourteenth Amendment emerged from the United States’ solemn obligation to secure freedom, citizenship, and equal civil protection for persons formerly held in American chattel slavery. The recent decision in Trump v. Barbara addressed an important constitutional question, but my Administration must also ensure that the original Reconstruction beneficiaries are neither forgotten in the historical analysis nor left behind in the continuing execution of federal law.
I have therefore directed the Attorney General and Solicitor General to determine whether grounds exist for a timely petition for rehearing or clarification consistent with Supreme Court Rule 44. I have also directed a government-wide review of the United States’ continuing constitutional and statutory responsibilities arising from emancipation, the Civil Rights Act of 1866, and the Reconstruction Amendments.
My Administration will respect the Constitution, comply with binding judgments, protect the lawful rights of every person, and faithfully execute the federal protections created for the people whose freedom and citizenship required the nation’s greatest constitutional reconstruction.
We will rehear through law. We will enforce through law. And we will complete, rather than abandon, the unfinished work of American freedom.
CONCLUSION
The President is presented with neither a choice between passive surrender and constitutional defiance nor a choice between the descendants of the enslaved and the lawful rights of immigrants.
A lawful third course exists.
The President may ask the Supreme Court to rehear or clarify its judgment because an antecedent Reconstruction question was not distinctly presented. He may direct the Department of Justice to recover and enforce the Civil Rights Act of 1866. He may educate the nation concerning the origin of federal citizenship. He may recommend legislation completing the work of Reconstruction. He may organize the executive branch to protect those whom the nation first enslaved, then emancipated, then declared to be citizens.
But he must do so through the Constitution rather than outside it.
The national command should therefore be:
REHEAR—so that the original constitutional injury and its primary beneficiaries are finally heard.
ENFORCE—so that the citizenship, rights, protection, and promised restoration of those beneficiaries are made real.
The matter is not solely one of immigration policy. It is a question of whether the United States will enter its next era without first completing the most consequential unfinished constitutional work of its last one.
Respectfully submitted,
Ted Hayes
Mr. Citizen Patriot
Founder, Justiceville
The Society of USA Federal Citizens