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Executive Order 11165 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 Art. II §2: Commander-in-Chief Supervisory Authority

Executive Order 11165—Setting Aside for the Use of the United States Certain Public Lands and Other Public Property Located at the Fort Shafter Military Reservation, Hawaii

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Saturday, August 15, 1964
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4 min read (704 words)

Executive Brief • At a Glance

⏱️ 4 min read (704 words) • ● In Effect
🎯 Primary Mandate

All lands and other property hereinafter described, being lands and property which were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or which have been acquired in exchange for lands or properties so ceded, are hereby set aside for the use of the United States* in fee simple subject to valid existing rights, and subject to the provisions of paragraph numbered 2 of this Order with respect to Parcel B— Tract G Of Fort Shafter Military Reservation PARCEL A Being Remnant "A" of Federal Aid Secondary Project No. S-0720(l), being also a portion of Presidential Executive Order 5607, dated April 22,1931 (Amending Presidential Executive Order 5132, dated June…

⚖️ Constitutional Footing
⚖️✨ Zone 2: Zone of Twilight
Concurrent Authority / Congressional Silence
📜 Art. II §2: Commander-in-Chief Supervisory Authority
🏛️ Scope & Affected Sectors
Armed Forces & Military Establishments Sovereign State Governments & Localities

Plain-English Translation & Framers' Constitutional Analysis

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

Signed by President Lyndon B. Johnson on August 15, 1964, this order concerns Setting Aside for the Use of the United States Certain Public Lands and Other Public Property Located at the Fort Shafter Military Reservation, Hawaii. 1. All lands and other property hereinafter described, being lands and property which were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or which have been acquired in exchange for lands or properties so ceded, are hereby set aside for the use of the United States* in fee simple subject to valid existing rights, and subject to…

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

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All lands and other property hereinafter described, being lands and property which were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or which have been acquired in exchange for lands or properties so ceded, are hereby set aside for the use of the United States* in fee simple subject to valid existing rights, and subject to the provisions of paragraph numbered 2 of this Order with respect to Parcel B— Tract G Of Fort Shafter Military Reservation PARCEL A Being Remnant "A" of Federal Aid Secondary Project No. S-0720(l), being also a portion of Presidential Executive Order 5607, dated April 22,1931 (Amending Presidential Executive Order 5132, dated June…

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PARCEL B Being Remnant "B" of Federal Aid Secondary Project No. S-0720(l), being also a portion of Presidential Executive Order 5607, dated April 22, 1931 (Amending Presidential Executive Order 5132, dated June 6, 1929), situate at Kahauiki, Oahu, Hawaii.

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Parcel B shall be subject to use by the State of Hawaii and its assigns for non-exclusive rights-of-way for access and utility purposes.

Constitutional & Societal Entities Impacted

🏛️ Armed Forces & Military Establishments 🏛️ Sovereign State Governments & Localities
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The Framers' Constitutional Council

1787 Prism

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

⚖️✨ Zone 2 (Zone of Twilight)
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"When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority."

— Justice Robert H. Jackson, Youngstown Sheet & Tube Co. v. Sawyer (1952) Concurrent Authority / Congressional Silence
JM

James Madison

Separation of Powers & Legislative Primacy

"Power is of an encroaching nature, and it ought to be effectually restrained from passing the limits assigned to it." — Federalist No. 48 (1788)

Madison would view this order with watchful scrutiny. Operating in the 'Zone of Twilight' where Congress is silent, each such directive establishes an administrative precedent that steadily expands the executive perimeter at the expense of legislative primacy.

Madisonian Stance: Vigilant / Cautionary
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 president will be surrounded by flatterers and sycophants... and the great powers of the executive will gradually absorb the liberties of the people." — Cato IV (Anti-Federalist, 1787)

The Anti-Federalist prism advises continuous democratic vigilance. Even routine administrative directives aggregate centralized federal power away from town halls and state assemblies toward a distant executive apparatus.

Anti-Federalist Stance: Eternal Vigilance Required
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Five Measurable "Constitutional Friction" Dimensions

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

⚖️ Discretionary Twilight Zone
30 / 100 friction index
Dimension 1 • Art. I, §1 & §8

Legislative Encroachment & Purse

Low Friction

Operates within delegated statutory execution without modifying legislative appropriations or taxing powers.

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

Executive Scope & Faithfulness

Low Friction

Exercises standard supervisory executive authority to faithfully execute existing statutes.

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

Federalism & State Sovereignty

Moderate Friction

Engages state and local partners in cooperative federalism programs.

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

Due Process & Individual Rights

Low Friction

Focuses on internal governmental operations with no direct impairment of private rights or property.

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

Youngstown Jacksonian Tier

Moderate Friction

The order relies on inherent Article II executive discretion, civil service management, or foreign diplomacy where Congress has neither expressly approved nor prohibited action.

Benchmark: Concurrent Authority / Congressional Silence
⚖️ Audit Synthesis

This order operates within Justice Jackson’s Zone of Twilight, resting upon concurrent presidential authority or congressional silence.

Weighted composite: Art. I (25%), Art. II (25%), Federalism (15%), Due Process (15%), Youngstown (20%).
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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
704
4,204 characters
Estimated Read Time
4 min
@ 200 words / min
Flesch-Kincaid
7.1
Grade 7
Language Tone Score
+0.02
Constitutional Neutral
How is this scored?
Text size:

Official Archival Text

View Source Document

By virtue of the authority vested in me by section 5(d) of the Act of March 18,1959, providing for the admission of the State of Hawaii into the Union (73 Stat. 5), and as President of the United States, it is hereby ordered as follows— 1. All lands and other property hereinafter described, being lands and property which were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or which have been acquired in exchange for lands or properties so ceded, are hereby set aside for the use of the United States* in fee simple subject to valid existing rights, and subject to the provisions of paragraph numbered 2 of this Order with respect to Parcel B— Tract G Of Fort Shafter Military Reservation PARCEL A Being Remnant "A" of Federal Aid Secondary Project No. S-0720(l), being also a portion of Presidential Executive Order 5607, dated April 22,1931 (Amending Presidential Executive Order 5132, dated June 6, 1929), situate at Kahauiki, Oahu, Hawaii, and a portion of Moanalua Road, situate at Moanalua, Oahu, Hawaii. Beginning at the east corner of this piece of land, being also the north corner of Remnant "B" on the northeast boundary of Presidential Executive Order 5607, the coordinates of the said point of beginning referred to Government Survey Triangulation Station "Salt Lake" being 7,783.56 feet South and 7,424.74 feet East, thence running by azimuths measured clockwise from true South: 1. 131 °32' 276.00 feet along the remainder of P.E.O. 5607, along the new northeast side of Moanalua Road, Project No. S-0720(l); 2. 127°49' 138.36 feet along same; 3. 123 °46' 88.44 feet along same; 4. 122°55' 112.11 feet along same; 5. 115°45' 97.15 feet along same; 6. 104°39' 127.90 feet along same; 7. 105°57' 345.43 feet along same; 8. 95°58'75.44 feet along same; 9. 91°35' 16.61 feet along the remainder of the present Moanalua Road, along the new northeast side of Moanalua Road. Project No. S-0720 (1); 10. 253°51' 12.40 feet along the present northwest side of Moanalua Road, along Parcel 1 of P.E.O. 4545; 11. 191"03'59" 4.43 feet along the Kahauiki-Moanalua boundary, along the west end of P.E.O. 5607; 12. Thence along the northeast side of P.E.O. 5607 along Fort Shatter Military Reservation, P.E.O. 2521, on a curve to the right with a radius of 517.61 feet, the chord azimuth and distance being 275°47'04" 184.48 feet; 13. 286°03' 193.77 feet along the northeast side of P.E.O. 5607, along Fort Shafter Military Reservation, P.E.O. 2521; 14. Thence along same on a curve to the right with a radius of 1,457.77 feet, the chord azimuth and distance being 300°36'30" 732.86 feet; 15. Thence along same on a curve to the right with a radius of 1,440.54 feet, the chord azimuth and distance being 318°18'57" 158.27 feet to the point of beginning and containing an area of 24,710 square feet, or 0.567 acre, more or less. PARCEL B Being Remnant "B" of Federal Aid Secondary Project No. S-0720(l), being also a portion of Presidential Executive Order 5607, dated April 22, 1931 (Amending Presidential Executive Order 5132, dated June 6, 1929), situate at Kahauiki, Oahu, Hawaii. Beginning at the north corner of this piece of land, being also the east corner of Remnant "A," on the northeast side of P.E.O. 5607, the coordinates of the said point of beginning referred to Government Survey Triangulation Station "Salt Lake" being 7,783.56 feet South and 7,424.74 feet East, thence running by azimuths measured clockwise from true South: 1. Along the northeast boundary of P.E.O. 5607, along Fort Shatter Military Reservation, P.E.O. 2521, on a curve to the right with a radius of 1,440.54 feet, the chord azimuth and distance being 327°03'12" 280.56 feet; 2. 146°46'30" 221.60 feet along the remainder of P.E.O. 5607, along the new northeast side of Moanalua Road, Project No. S-0720(l); 3. 148°06' 58.98 feet along same to the point of beginning and containing an area of 1,432 square feet, or 0.033 acre, more or less. 2. Parcel B shall be subject to use by the State of Hawaii and its assigns for non-exclusive rights-of-way for access and utility purposes. LYNDON B. JOHNSON The White House, August 15, 1964.

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Scholarly & Legal Citations

Exec. Order No. 11,165 (Aug. 15, 1964), https://executiveordersarchive.org/orders/app-executive-order-11165-setting-aside-for-the-use-the-united-states-certain-public-lands-and.