A. The Separate Constitutional Character of the ENFORCE Track
The request for rehearing addressed in Part VIII concerns the authority of the Supreme Court to reconsider a judgment under its own rules.
The ENFORCE Track concerns a different constitutional question.
It asks what responsibilities belong to the President under Article II with respect to Acts of Congress that remain legally operative, the federal rights derived from them, and the officers and departments charged with administering the laws of the United States.
The two tracks should not be confused.
A petition for rehearing asks the Judicial Branch to reconsider a judicial determination.
Executive enforcement asks the President to perform the duties lawfully assigned to the Executive Branch.
Accordingly, this memorandum does not argue that the President may reverse a judgment of the Supreme Court, declare himself superior to the Judiciary, or disregard binding law. It argues that the President retains an independent constitutional responsibility to determine what existing federal laws require of the Executive Branch and to see that those laws are faithfully administered within constitutional limits.
B. The Take Care Clause
Article II, Section 3 of the Constitution provides that the President “shall take Care that the Laws be faithfully executed.”
The Take Care Clause imposes a duty rather than merely granting a privilege. It places responsibility for federal-law execution within the Executive Branch, while recognizing that Congress may assign particular duties to executive departments, officers, prosecutors, marshals, and agencies. The Constitution Annotated explains that this responsibility includes powers conferred directly upon the President, powers assigned by Congress to the President, and duties assigned by law to executive officers acting under presidential supervision.
The President’s obligation is therefore neither unlimited nor optional.
It is not unlimited because the President must act pursuant to the Constitution and laws, not outside them.
It is not optional because Article II does not permit the President to treat valid federal law as a matter of personal preference.
The present memorandum relies upon this settled constitutional structure while advancing a separate interpretive argument concerning the continuing Reconstruction responsibilities of the Executive Branch.
C. Faithful Execution Is Not Presidential Legislation
The President does not make federal law by executive will.
Article I vests legislative power in Congress. Article II entrusts execution of the laws to the President. Article III assigns the judicial power to the federal courts.
Therefore, the ENFORCE Track does not request that the President create a new citizenship law, amend the Fourteenth Amendment, repeal a Supreme Court decision, or manufacture statutory authority that Congress never enacted.
Rather, it asks the President and qualified executive counsel to examine what authority Congress already enacted, what portions remain legally operative, how those provisions have been codified or superseded, what later statutes now govern their enforcement, and what lawful executive measures may presently be available.
This distinction is essential.
An executive order may direct officers in the administration of existing law. It cannot transform a disputed historical theory into binding law merely by presidential proclamation.
Accordingly, any executive action arising from this memorandum must rest upon identifiable constitutional or statutory authority and must remain subject to judicial review.
D. The Enforcement Design of the Civil Rights Act of 1866
The Civil Rights Act of 1866 was expressly enacted to protect civil rights and to provide means for their vindication. Its structure joined rights to remedies.
Section 1 declared citizenship and enumerated civil rights.
Section 2 imposed criminal consequences upon persons who, under color of law or custom, deprived protected persons of rights secured by the Act.
Section 3 gave federal courts jurisdiction over specified criminal offenses and certain civil and criminal causes involving persons unable to enforce protected rights in state or local tribunals.
Section 4 authorized designated federal officials—including district attorneys, marshals, deputy marshals, commissioners, and officers specially empowered by the President—to institute proceedings against violators and cause their arrest for trial.
The Act therefore confirms that Congress did not contemplate civil-rights protection as a matter resting exclusively upon private litigation or state goodwill.
It supplied a federal enforcement system.
E. Section 8: Preventive Attention and Expedited Enforcement
Section 8 is particularly important, but its language must be described accurately.
It does not declare an unlimited presidential power over all matters affecting freed persons. Nor does it independently command the President to undertake every policy measure proposed in this memorandum.
Section 8 provides that whenever the President has reason to believe that offenses have been or are likely to be committed against the Act, it is lawful for him to direct the appropriate federal judge, marshal, and district attorney to attend at a designated place for the more speedy arrest and trial of persons charged with violations. Once such a presidential requisition is received, the Act states that the designated officers have a duty to attend.
This language is significant in at least three respects.
First, Congress contemplated executive attention before violations had necessarily been completed. The phrase concerning offenses “likely to be committed” reflects a preventive as well as reactive concern.
Second, Congress authorized presidential coordination of federal judicial and enforcement personnel in places where violations threatened to occur.
Third, Congress sought expedited arrest and trial rather than passive observation.
The memorandum therefore contends that Section 8 reflects a Reconstruction understanding that federal civil-rights enforcement could require timely presidential involvement when credible conditions indicated that protected rights were in danger.
That conclusion should not be exaggerated.
Section 8’s original machinery must be examined in light of later legislation, present institutional arrangements, current jurisdictional doctrine, and any portions of the original Act that have been amended, reenacted, codified, displaced, or rendered obsolete.
It is therefore a source of historical and potentially legal significance, but not a self-executing answer to every contemporary question.
F. Section 9: The Use of Federal Forces
The original Civil Rights Act addressed force more directly in Section 9, not Section 8.
Section 9 provided that it would be lawful for the President, or a person empowered by him, to employ such part of the land or naval forces of the United States, or the militia, as necessary to prevent violations and enforce the due execution of the Act.
Because this provision concerns military force, it must be treated with exceptional caution.
The memorandum does not contend that Section 9 may simply be lifted from 1866 and applied today without analysis of intervening statutes, appropriations, military law, federalism, the Posse Comitatus Act, judicial precedent, present codification, and any other controlling legal limitations.
Nor does it recommend military deployment as an initial political response to a disputed question of statutory interpretation.
Rather, the provision is historically significant because it demonstrates the seriousness with which Congress regarded resistance to federal civil-rights law. Congress anticipated circumstances in which ordinary local systems might obstruct enforcement and therefore placed federal executive power within the original remedial structure.
Any claim that Section 9 presently authorizes a specific use of force must be independently evaluated by the Department of Justice, the Office of Legal Counsel, the White House Counsel, and any other legally responsible authorities before action is considered.
G. Section 10 and Judicial Review
Section 10 provided for final appeal to the Supreme Court on questions of law arising in causes under the Act.
This provision is important because it confirms that executive enforcement and judicial authority were not designed as enemies.
The Act contemplated executive officers, federal prosecutors, federal courts, and ultimately the Supreme Court operating within a common legal structure.
The President would execute.
Federal officers would investigate, arrest, prosecute, and administer.
Federal courts would adjudicate.
The Supreme Court would resolve questions of law properly brought before it.
The original Act therefore offers no support for a theory that faithful execution means executive nullification of the Judiciary.
Its architecture instead reflects interbranch responsibility.
H. The Memorandum’s Argument Concerning Omission
The author has repeatedly emphasized the difference between harmful action and harmful omission.
That concern deserves careful treatment.
Article II requires faithful execution, but not every failure to adopt a proposed policy constitutes an unconstitutional omission. The President retains enforcement discretion, must allocate limited resources, must comply with present law, and may reasonably reject a legal interpretation not supported by governing authority.
Accordingly, this memorandum should not assert categorically that a President violates the Civil Rights Act of 1866 merely by declining to adopt the author’s complete program.
The stronger and more defensible proposition is narrower.
Where federal law imposes a specific, presently operative duty upon an executive officer, deliberate refusal to perform that duty may raise Take Care Clause concerns. Where the law instead grants discretion, the constitutional question turns upon whether that discretion has been exercised faithfully, lawfully, and for purposes consistent with the statute.
The memorandum therefore requests legal determination rather than presuming the answer.
It asks counsel to identify:
whether presently operative law imposes any specific executive duties relevant to the Primary Subject Beneficiaries described herein;
whether federal rights traceable to the Reconstruction statutes are presently being underenforced;
whether federal agencies possess unused or underused authority capable of addressing those conditions;
and whether executive inaction has resulted from lawful discretion, institutional neglect, historical misunderstanding, or an erroneous view that the underlying Reconstruction responsibilities no longer exist.
That inquiry is serious without being reckless.
I. No New Executive Order Is Legally Necessary Merely to Study and Enforce Existing Law
The President does not require a new executive order merely to direct the Department of Justice or other executive departments to examine existing legal authority, review enforcement practices, identify statutory responsibilities, or recommend lawful action.
Those functions fall within the ordinary work of executive administration.
A presidential memorandum, directive, interagency review, Attorney General opinion request, Office of Legal Counsel review, enforcement-priority determination, or proposed legislative recommendation may each serve different lawful purposes.
A new executive order may ultimately be useful if counsel identifies a lawful need for one. But the central premise of the ENFORCE Track is not dependent upon creating a new source of power.
The Executive Branch may begin by asking a disciplined legal question:
What duties, authorities, remedies, and unresolved responsibilities arising from Reconstruction law are presently vested in the President and executive departments, and how should they now be faithfully administered?
That question may be posed immediately and lawfully.
J. Proposed Initial Executive Review
The President could direct qualified counsel to conduct a formal review of the Civil Rights Act of 1866 and related Reconstruction enactments.
Such a review should identify the present legal status of each relevant provision, including whether it remains directly operative, has been reenacted, has been codified elsewhere, has been amended, has expired, has been superseded, or now functions through later civil-rights statutes.
The review should also examine the relationship among the Thirteenth, Fourteenth, and Fifteenth Amendments; the Enforcement Acts; present civil-rights statutes; federal criminal law; federal property law; and the statutory responsibilities of executive departments.
The requested review should not begin by assuming that every theory in this memorandum is correct.
It should test them.
It should identify which propositions are supported, which require qualification, which have been displaced by precedent, which may remain legally viable, and which should be disavowed.
That is consistent with the Author’s Statement placed at the beginning of this memorandum.
K. From Historical Recognition to Present Administration
The author’s broader concern is that the formerly enslaved population may have remained historically central but administratively invisible.
Federal law recognizes many rights of general application. Yet a generally worded remedy may still possess an identifiable historical origin and remedial responsibility.
The ENFORCE Track therefore asks whether present executive administration has adequately preserved awareness of the population whose condition caused Congress to create the first federal civil-rights regime.
This does not require the denial of legal protection to others.
It requires the Nation to remember the original wound while faithfully applying the law according to its current legal reach.
The author contends that historical recognition may inform lawful executive priorities concerning civil-rights enforcement, constitutional education, access to federal programs, housing, employment, land policy, and institutional study.
Whether any particular initiative is authorized must be determined separately under the statute governing that initiative.
L. Executive Action Cannot Depend upon Historical Identity Alone
The memorandum must also acknowledge an important constitutional limitation.
The historical status of a population does not automatically authorize every proposed governmental benefit, classification, preference, or remedial program.
Present executive action must comply with equal-protection principles, statutory eligibility requirements, appropriations law, administrative law, and controlling judicial precedent.
Therefore, proposals such as a modern Freedmen’s Bureau, federal-land initiatives, targeted education, employment programs, or EXODUS II cannot be lawfully created merely by invoking the Civil Rights Act of 1866.
Each proposal requires its own legal foundation.
Some measures may be available through existing general authority.
Some may require congressional appropriations.
Some may require new legislation.
Some may be constitutionally permissible only if defined by present need rather than ancestry alone.
Others may not withstand legal review.
The attorney-ready position is therefore not that the President may accomplish everything proposed by unilateral decree.
It is that the President may immediately order a serious legal and administrative examination of what can lawfully be done, begin enforcing authority that already exists, and ask Congress for additional authority where necessary.
M. The Relationship to the Rehearing Request
The ENFORCE Track need not await the outcome of a rehearing petition insofar as it concerns independent executive duties under presently operative law.
At the same time, executive action must not interfere with pending judicial proceedings, misrepresent the Court’s judgment, or attempt to predetermine questions properly before the Judiciary.
The tracks may therefore proceed simultaneously but separately.
The REHEAR Track asks whether the Court should reconsider the legal and historical premises of Case No. 25-365.
The ENFORCE Track asks whether the Executive Branch is fully and faithfully administering the Reconstruction laws and present statutes within its jurisdiction.
One concerns judicial reconsideration.
The other concerns executive responsibility.
Neither requires constitutional rebellion against the other branch.
N. The Requested Presidential Determination
The author respectfully requests that the President direct the Attorney General, White House Counsel, and other appropriate officials to determine:
whether the historical and legal analysis advanced in this memorandum identifies presently enforceable federal duties;
whether the Civil Rights Act of 1866 and its statutory descendants have been interpreted or administered without sufficient attention to their principal Reconstruction purpose;
whether Section 8 or any presently operative successor authority supports preventive federal action where civil-rights violations are credibly threatened;
whether any current federal authority supports institutional measures responsive to the continuing conditions described herein;
whether additional legislation is necessary;
and whether the Executive Branch should formally acknowledge the formerly enslaved population and its descendants as the Primary Subject Beneficiaries of the Nation’s original federal civil-rights project, while preserving the lawful rights of all persons protected by current law.
The memorandum requests a legal answer, not a ceremonial response.
O. Conclusion: Enforcement Within Law
The President’s duty is not to enforce the author’s wishes.
It is to faithfully execute the Constitution and laws of the United States.
The author’s request is that the Executive Branch determine whether those laws contain neglected Reconstruction responsibilities and, if so, carry them into lawful effect.
The Civil Rights Act of 1866 demonstrates that Congress understood freedom to require more than declaration.
It required citizenship.
It required rights.
It required remedies.
It required officers.
It required courts.
And where credible danger existed, it contemplated preventive federal attention.
The enduring constitutional question is whether the Nation has faithfully completed that work.
The following Part turns from the general enforcement authority of the Executive Branch to the concrete actions this memorandum asks the President to consider: the proposed Moratorium, constitutional and historical literacy, institutional review, a modern administrative response to unfinished Reconstruction conditions, and the lawful development of the EXODUS II initiative.