★
Executive Orders Historical Archive
🎲
Cite
Executive Order 10861 ⚖️⚠️ Zone 3: Lowest Ebb Constitutional Friction / Overreach (-0.19) 📜 Art. II §2: Commander-in-Chief / War Prerogative Tension

Executive Order 10861—Suspension of Certain Provisions of Section 5762 of Title 10 of the United States Code Which Relate to the Promotion of Officers of the Supply Corps, Chaplain Corps, Civil Engineer Corps, and Medical Service Corps of the Navy

Dwight D. Eisenhower Dwight D. Eisenhower
•
Thursday, February 11, 1960
•
1 min read (297 words)

Executive Brief • At a Glance

⏱️ 1 min read (297 words) • ● In Effect
🎯 Primary Mandate

Except as to the provision which reads The Secretary of the Navy shall furnish the appropriate selection board convened under chapter 643 of this title with the number of officers, not restricted In the performance of duty, other than women officers appointed under section 5590 of this title, that may be recommended for promotion to the grade of captain or commander In the Medical Corps, the Supply Corps, the Chaplain Corps, the Civil Engineer Corps, Dental Corps, or the Medical Service Corps * * *, the provisions of section 5762 (a) of title 10 of the United States Code, to the extent that such provisions are applicable to promotions to the grade of captain In the Supply Corps, the Chaplain Corps, the Civil Engineer Corps, and the…

View all 1 directives ↓
⚖️ Constitutional Footing
⚖️⚠️ Zone 3: Lowest Ebb
Incompatible with Expressed Will of Congress or High Friction
📜 Art. II §2: Commander-in-Chief / War Prerogative Tension
Framers' constitutional debate ↓
🏛️ Scope & Affected Sectors
Armed Forces & Military Establishments Executive Departments & Federal Civil Servants Public Health & Medical Institutions
Inspect unabridged text ↓

Plain-English Translation & Framers' Constitutional Analysis

Early Statesman synthesis distilling legal jargon into practical meaning, statutory anchors, and structural constitutional impacts.

Signed by President Dwight D. Eisenhower on February 11, 1960, this order concerns Suspension of Certain Provisions of Section 5762 of Title 10 of the United States Code Which Relate to the Promotion of Officers of the Supply Corps, Chaplain Corps, Civil Engineer Corps, and Medical Service Corps of the Navy. Except as to the provision which reads The Secretary of the Navy shall furnish the appropriate selection board convened under chapter 643 of this title with the number of officers, not restricted In the performance of duty, other than women officers appointed under section 5590 of this title, that may be recommended for promotion to the grade of captain or commander In the Medical Corps, the Supply Corps, the…

Constitutional Assessment: Scrutinized through Article II, Section 2, this action exercises the President's constitutional role as Commander in Chief. Early Framers recognized broad executive discretion in commanding military forces during conflict, provided it remains bounded by congressional declarations and respects civilian domestic courts.

Key Directives & Operative Actions

▪

Except as to the provision which reads The Secretary of the Navy shall furnish the appropriate selection board convened under chapter 643 of this title with the number of officers, not restricted In the performance of duty, other than women officers appointed under section 5590 of this title, that may be recommended for promotion to the grade of captain or commander In the Medical Corps, the Supply Corps, the Chaplain Corps, the Civil Engineer Corps, Dental Corps, or the Medical Service Corps * * *, the provisions of section 5762 (a) of title 10 of the United States Code, to the extent that such provisions are applicable to promotions to the grade of captain In the Supply Corps, the Chaplain Corps, the Civil Engineer Corps, and the…

Constitutional & Societal Entities Impacted

🏛️ Armed Forces & Military Establishments 🏛️ Executive Departments & Federal Civil Servants 🏛️ Public Health & Medical Institutions

Policy Areas & Topics

🏷️ National Security & Defense
🏛️

The Framers' Constitutional Council

1787 Prism

Evaluating this order against the constitutional debates of 1787 and the limits of Article II executive power.

⚖️⚠️ Zone 3 (Lowest Ebb)
§

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

— Justice Robert H. Jackson, Youngstown Sheet & Tube Co. v. Sawyer (1952) Incompatible with Expressed Will of Congress or High Friction
JM

James Madison

Separation of Powers & Legislative Primacy

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny." — Federalist No. 47 (1788)

Madison would express grave alarm over this order. By asserting independent authority in tension with legislative limits or the Bill of Rights, the Executive risks collapsing the separation of powers into unilateral rule. Under the Madisonian model, no emergency justifies the Executive substituting its decree for a deliberative Act of Congress.

Madisonian Stance: Strict Dissent (Overreach)
AH

Alexander Hamilton

The Energetic Executive & Unified Command

"The direction of war implies the direction of the common strength; and the power of directing and employing the common strength must be under the direction of the single hand of the Executive." — Federalist No. 74 (1788)

Hamilton would forcefully champion executive discretion here. For foreign entanglements, commerce defense, and national security, deliberative assemblies are too slow and faction-ridden. A unified, energetic Executive exercising swift command is precisely what the Philadelphia Convention intended for national preservation.

Hamiltonian Stance: Strong Prerogative Support
GM

George Mason

Bill of Rights, Due Process & 10th Amendment

"The purse and the sword ought never to be in the same hands... nor the liberties of the citizen placed at the pleasure of a single magistrate." — Virginia Ratifying Convention (1788)

George Mason and the Anti-Federalists would sound a fierce warning. They feared that Article II would inevitably evolve into an elective monarchy. When an executive order impacts private rights, property, or civil liberties without individualized judicial process, Mason would see their darkest predictions verified.

Anti-Federalist Stance: Vehement Objection
📐

Five Measurable "Constitutional Friction" Dimensions

An objective audit measuring potential separation-of-powers tension against the United States Constitution and established Supreme Court doctrine.

⚠️ Elevated Constitutional Friction
77 / 100 friction index
Dimension 1 • Art. I, §1 & §8

Legislative Encroachment & Purse

Moderate Friction

Administers commerce or fiscal programs requiring ongoing statutory delegation and legislative oversight.

Benchmark: Power of the purse, taxes/tariffs, and rule of law reserved to Congress.
Dimension 2 • Art. II, §1 & §3

Executive Scope & Faithfulness

High Friction

Invokes broad unilateral or emergency executive authorities that test the constitutional boundary of the Take Care Clause.

Benchmark: Faithfully execute laws enacted by Congress vs. unilateral decree.
Dimension 3 • 10th Amendment

Federalism & State Sovereignty

High Friction

Creates friction with the Tenth Amendment by conditioning state grants, mandating local compliance, or preempting state police powers.

Benchmark: Police powers and un-delegated responsibilities reserved to the States.
Dimension 4 • 5th & 14th Amendments

Due Process & Individual Rights

High Friction

Scrutinized under the Bill of Rights for potential impact on private contracts, property rights, or procedural due process.

Benchmark: Protection of private property, contracts, liberty, and procedural justice.
Dimension 5 • Separation of Powers

Youngstown Jacksonian Tier

High Friction

The order asserts independent Article II prerogative against statutory constraints, reallocates funds without explicit appropriation, or stretches executive power into realms constitutionally reserved to the legislature or judiciary.

Benchmark: Incompatible with Expressed Will of Congress or High Friction
⚖️ Audit Synthesis

This directive engages significant constitutional friction across statutory authorization, legislative prerogatives, or individual liberties.

Weighted composite: Art. I (25%), Art. II (25%), Federalism (15%), Due Process (15%), Youngstown (20%).
ℹ️
How to read these dimensions: Executive power expands whenever an administration acts without explicit statutory authorization from Congress (Article I), touches upon police powers historically reserved to the states (Tenth Amendment), or limits private rights and property without judicial process. A low friction score indicates strict concordance with enacted law; a high friction score highlights orders testing the limits of presidential discretion.
Total Words
297
1,733 characters
Estimated Read Time
1 min
@ 200 words / min
Flesch-Kincaid
22.2
Post-Graduate Legal
Language Tone Score
-0.19
Constitutional Friction / Overreach
How is this scored?
Text size:

Official Archival Text

View Source Document

By virtue of the authority vested In me by section 5785 (b) of title 10 of the United States Code, it is ordered as follows: SECTION 1. Except as to the provision which reads The Secretary of the Navy shall furnish the appropriate selection board convened under chapter 643 of this title with the number of officers, not restricted In the performance of duty, other than women officers appointed under section 5590 of this title, that may be recommended for promotion to the grade of captain or commander In the Medical Corps, the Supply Corps, the Chaplain Corps, the Civil Engineer Corps, Dental Corps, or the Medical Service Corps * * *, the provisions of section 5762 (a) of title 10 of the United States Code, to the extent that such provisions are applicable to promotions to the grade of captain In the Supply Corps, the Chaplain Corps, the Civil Engineer Corps, and the Medical Service Corps, are hereby suspended until June 30 of the fiscal year following that in which the national emergency proclaimed by Proclamation No. 2914 of December 16, 1950. shall end. SEC. 2. Except as to the provision which reads The Secretary shall furnish the appropriate selection board convened under chapter 643 of this title with the number of male officers In the Supply or the Civil Engineer Corps, not restricted In the performance of duty, that may be recommended for promotion to the grade of lieutenant commander or lieutenant • • •, the provisions of section 5762(b) of title 10 of the United States Code, are hereby suspended until June 30 of the fiscal year following that in which the national emergency proclaimed by Proclamation No. 2914 of December 16, 1950, shall end. DWIGHT D. EISENHOWER

THE WHITE HOUSE, #signature

February 11, 1960.

📜

Scholarly & Legal Citations 

Exec. Order No. 10,861 (Feb. 11, 1960), https://executiveordersarchive.org/orders/app-executive-order-10861-suspension-certain-provisions-section-5762-title-10-the-united.