WHEREAS I have today issued Proclamation No. 3841, pursuant in part to the provisions of Chapter 15 of Title 10 of the United States Code; and WHEREAS the conditions of domestic violence and disorder described therein continue, and the persons engaging in such acts of violence have not dispersed; Now, THEREFORE, by virtue of the authority vested in me as President of the United States and Commander in Chief of the Armed Forces by the Constitution and laws of the United States, including Chapter 15 of Title 10 of the United States Code, and Section 301 of Title 3 of the United States Code, it is hereby ordered as follows: SECTION 1. The Secretary of Defense is authorized and directed to take all appropriate steps to disperse all persons engaged in the acts of violence described in the proclamation and to restore law and order. SEC. 2. In carrying out the provisions of Section 1, the Secretary of Defense is authorized to use such of the Armed Forces of the United States as he may deem necessary. SEC. 3. The Secretary of Defense is hereby authorized and directed to call into the active military service of the United States, as he may deem appropriate to carry out the purposes of this order, units or members of the Army National Guard and of the Air National Guard to serve in the active military service of the United States for an indefinite period and until relieved by appropriate orders. Units or members may be relieved subject to recall at the discretion of the Secretary of Defense. In carrying out the provisions of Section 1, the Secretary of Defense is authorized to use units and members called or recalled into the active military service of the United States pursuant to this section. SEC. 4. The Secretary of Defense is authorized to delegate to one or more of the Secretaries of the military Departments any of the authority conferred upon him by this order. LYNDON B. JOHNSON 1:01 a.m., April 7, 1968 The White House Washington, D.C.
Executive Order 11404 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02)
📜 Art. II §2: Commander-in-Chief Supervisory Authority
Executive Order 11404—Providing for the Restoration of Law and Order in the State of Illinois
Executive Brief • At a Glance
⏱️ 2 min read (343 words) •
● In Effect
🎯 Primary Mandate
The Secretary of Defense is authorized and directed to take all appropriate steps to disperse all persons engaged in the acts of violence described in the proclamation and to restore law and order.
⚖️ 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 Executive Departments & Federal Civil Servants
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 April 7, 1968, this order concerns Providing for the Restoration of Law and Order in the State of Illinois. The Secretary of Defense is authorized and directed to take all appropriate steps to disperse all persons engaged in the acts of violence described in the proclamation and to restore law and order. SEC. 2. In carrying out the provisions of Section 1, the Secretary of Defense is authorized to use such of the Armed Forces of the United States as he may deem necessary. SEC. 3.
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
▪
The Secretary of Defense is authorized and directed to take all appropriate steps to disperse all persons engaged in the acts of violence described in the proclamation and to restore law and order.
▪
In carrying out the provisions of Section 1, the Secretary of Defense is authorized to use such of the Armed Forces of the United States as he may deem necessary.
▪
The Secretary of Defense is hereby authorized and directed to call into the active military service of the United States, as he may deem appropriate to carry out the purposes of this order, units or members of the Army National Guard and of the Air National Guard to serve in the active military service of the United States for an indefinite period and until relieved by appropriate orders.
▪
The Secretary of Defense is authorized to delegate to one or more of the Secretaries of the military Departments any of the authority conferred upon him by this order.
Constitutional & Societal Entities Impacted
🏛️ Armed Forces & Military Establishments
🏛️ Executive Departments & Federal Civil Servants
Policy Areas & Topics
🏛️
The Framers' Constitutional Council
1787 PrismEvaluating this order against the constitutional debates of 1787 and the limits of Article II executive power.
⚖️✨ Zone 2 (Zone of Twilight)
§
"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
📐
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
37 / 100 friction index
Dimension 1 • Art. I, §1 & §8
Low Friction
Legislative Encroachment & Purse
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
Low Friction
Executive Scope & Faithfulness
Exercises standard supervisory executive authority to faithfully execute existing statutes.
Benchmark: Faithfully execute laws enacted by Congress vs. unilateral decree.
Dimension 3 • 10th Amendment
High Friction
Federalism & State Sovereignty
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
Low Friction
Due Process & Individual Rights
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
Moderate Friction
Youngstown Jacksonian Tier
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%).
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
343
1,966 characters
Estimated Read Time
2 min
@ 200 words / min
Flesch-Kincaid
17.1
Post-Graduate Legal
Text size:
Related Executive Orders
Other executive actions signed by Lyndon B. Johnson around this period.
EO 11405 Apr 7, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11405—Providing for the Restoration of Law and Order in the State of Maryland
📜 Art. II §2: Commander-in-Chief Supervisory Authority
The Secretary of Defense is authorized and directed to take all appropriate steps to disperse all persons engaged in the acts of violence described in the proclamation and to restore law and order. SEC. 2.
Lyndon B. Johnson Post-Graduate Legal • 2m
EO 11403 Apr 5, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11403—Providing for the Restoration of Law and Order in the Washington Metropolitan Area
📜 Art. II §2: Commander-in-Chief Supervisory Authority
The Secretary of Defense is authorized and directed to take all appropriate steps to disperse all persons engaged in the acts of violence described in the proclamation, to restore law and order, and to see that the property, personnel and functions of the Federal Government, of…
Lyndon B. Johnson Post-Graduate Legal • 2m
EO 11406 Apr 10, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11406—Assigning Authority With Respect to Ordering Units in the Ready Reserve to Active Duty
📜 Art. II §2: Commander-in-Chief Supervisory Authority
The Secretary of Defense, and, when designated by him for this purpose, any of the Secretaries of the military departments of the Department of Defense, are hereby authorized and empowered to exercise the authority vested in the President until June 30, 1968, by paragraph (e)…
Lyndon B. Johnson Post-Graduate Legal • 1m
EO 11402 Mar 29, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11402—Making the Vice President of the United States the Chairman of the President's Council on Recreation and Natural Beauty
📜 Art. II §2: Commander-in-Chief Supervisory Authority
Executive Order No. 11278 of May 4, 1966, entitled "Establishing a President's Council and a Committee on Recreation and Natural Beauty", as amended, is hereby further amended by substituting for section 101 thereof the following: "SECTION 101. Membership and chairmanship.
Lyndon B. Johnson Post-Graduate Legal • 1m
EO 11407 Apr 23, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11407—Amending Executive Order No. 11174, Establishing the Presidential Service Certificate and the Presidential Service Badge
📜 Art. II §2: Commander-in-Chief Supervisory Authority
Paragraphs 1, 2, and 3 of Executive Order No. 11174 of September 1, 1964, entitled "Establishing the Presidential Service Certificate and the Presidential Service Badge", are hereby amended to read as follows: "1. Certificate established.
Lyndon B. Johnson Post-Graduate Legal • 2m
EO 11408 Apr 25, 1968
🏛️✅ Zone 1 (Maximum Authority) Constitutional Neutral
Executive Order 11408—Revoking Executive Order No. 9 of January 17, 1873, and Amendatory Orders, Relating to Dual Federal-State Office Holding, and Executive Order No. 9367 of August 4, 1943, Prohibiting Government Employees From Instructing Persons for Certain Government Examinations
📜 10th Amend: Intergovernmental Federalism Cooperation
Executive Order No. 9 of January 17, 1873, and Executive Order No. 9367 of August 4,1943, are hereby revoked. SEC. 2. All prior Executive orders insofar as they interpret or amend Executive Order No. 9 are hereby revoked.
Lyndon B. Johnson Post-Graduate Legal • 2m
📜
Scholarly & Legal Citations
Exec. Order No. 11,404 (Apr. 7, 1968), https://executiveordersarchive.org/orders/app-executive-order-11404-providing-for-the-restoration-law-and-order-the-state-illinois.
