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Executive Order 11528 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 Art. II §2: Commander-in-Chief Supervisory Authority

Executive Order 11528—Changing the Jurisdiction and Membership of the New England River Basins Commission

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Friday, April 24, 1970
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4 min read (826 words)

Executive Brief • At a Glance

⏱️ 4 min read (826 words) • ● In Effect
🎯 Primary Mandate

It is hereby determined that the jurisdiction of the New England River Basins Commission referred to in section 1 of this order (hereinafter referred to as the Commission) shall extend to an area composed as follows: "(1) The State of Maine, "(2) The State of New Hampshire, "(3) The State of Vermont, excluding that portion thereof which is within the drainage area of the Hudson River and excluding also that portion thereof which is within the drainage area of Lake Champlain, "(4) The State of Massachusetts, excluding that portion thereof which is within the drainage area of the Hudson River, "(5) The State of Connecticut, "(6) The State of Rhode Island, "(7) (i) That portion of the State of New York which is within the drainage area of…

⚖️ 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 Executive Departments & Federal Civil Servants Private Citizens & Property Owners

Plain-English Translation & Framers' Constitutional Analysis

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

Signed by President Richard Nixon on April 24, 1970, this order concerns Changing the Jurisdiction and Membership of the New England River Basins Commission. By virtue of the authority vested in me by sections 201 and 202 of the Water Resources Planning Act (42 U.S.C. 1962b; 1962b-1), and as President of the United States, sections 2 and 3 of Executive Order No. 11371 of September 6, 1967, are amended to read as follows: "Sec. 2. Jurisdiction of Commission.

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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It is hereby determined that the jurisdiction of the New England River Basins Commission referred to in section 1 of this order (hereinafter referred to as the Commission) shall extend to an area composed as follows: "(1) The State of Maine, "(2) The State of New Hampshire, "(3) The State of Vermont, excluding that portion thereof which is within the drainage area of the Hudson River and excluding also that portion thereof which is within the drainage area of Lake Champlain, "(4) The State of Massachusetts, excluding that portion thereof which is within the drainage area of the Hudson River, "(5) The State of Connecticut, "(6) The State of Rhode Island, "(7) (i) That portion of the State of New York which is within the drainage area of…

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It is hereby determined, in accordance with section 202 of the Act, that the Commission shall consist of the following: "(1) a Chairman to be appointed by the President, "(2) one member from each of the following Federal departments and agencies: Department of Agriculture, Department of the Army, Department of Commerce, Department of Health, Education, and Welfare, Department of Housing and Urban Development, Department of the Interior, Department of Transportation, Atomic Energy Commission, and Federal Power Commission, each such member to be appointed by the head of each department or independent agency he represents, "(3) one member from each of the following States: Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode…

Constitutional & Societal Entities Impacted

🏛️ Armed Forces & Military Establishments 🏛️ Sovereign State Governments & Localities 🏛️ Executive Departments & Federal Civil Servants 🏛️ Private Citizens & Property Owners 🏛️ Public Health & Medical Institutions
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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
826
5,077 characters
Estimated Read Time
4 min
@ 200 words / min
Flesch-Kincaid
36.5
Post-Graduate Legal
Language Tone Score
+0.02
Constitutional Neutral
How is this scored?
Text size:

Official Archival Text

View Source Document

WHEREAS Executive Order No. 11371 of September 6, 1967, established a New England River Basins Commission in accordance with Title II of the Water Resources Planning Act, but did not include within the jurisdiction of the Commission certain portions of Long Island Sound and Long Island in the State of New York; and WHEREAS planning for use and development of water and related resources of the Sound requires unified consideration of the Sound and of the land areas draining into the Sound; and WHEREAS the New England River Basins Commission by resolution dated March 11, 1968, requested that the jurisdiction of the Commission be extended to include certain portions of the Sound and Long Island; and WHEREAS the Governors of the States within the jurisdiction of the New England River Basins Commission, by letters, and the Water Resources Council, by resolution dated July 16, 1969, concurred in the proposed change in jurisdiction; and WHEREAS the New England River Basins Commission by resolution dated October 3, 1969, requested that the Atomic Energy Commission be authorized to designate a member on the New England River Basins Commission because of the close relationship between water and related land resources and the planning and construction of electric power generating facilities, particularly those utilizing energy of nuclear reactors, and because of the urgent need for full communication and cooperation between the Atomic Energy Commission and State and Federal agencies concerned with water and related land resources; and WHEREAS the Atomic Energy Commission by letter of November 12, 1969, requested it be authorized to designate a member on the New England River Basins Commission; and WHEREAS the Water Resources Council, at its meeting on November 20, 1969, unanimously recommended that the Atomic Energy Commission be authorized to designate a member on the New England River Basins Commission; and WHEREAS the Atomic Energy Commission has a substantial interest in the work of the New England River Basins Commission; and WHEREAS it appears to be in the public interest and in keeping with the intent of Congress to make the proposed change of jurisdiction and to add a member from the Atomic Energy Commission to the New England River Basins Commission: Now, THEREFORE, by virtue of the authority vested in me by sections 201 and 202 of the Water Resources Planning Act (42 U.S.C. 1962b; 1962b-1), and as President of the United States, sections 2 and 3 of Executive Order No. 11371 of September 6, 1967, are amended to read as follows: "Sec. 2. Jurisdiction of Commission. (a) It is hereby determined that the jurisdiction of the New England River Basins Commission referred to in section 1 of this order (hereinafter referred to as the Commission) shall extend to an area composed as follows: "(1) The State of Maine, "(2) The State of New Hampshire, "(3) The State of Vermont, excluding that portion thereof which is within the drainage area of the Hudson River and excluding also that portion thereof which is within the drainage area of Lake Champlain, "(4) The State of Massachusetts, excluding that portion thereof which is within the drainage area of the Hudson River, "(5) The State of Connecticut, "(6) The State of Rhode Island, "(7) (i) That portion of the State of New York which is within the drainage area of the Housatonic River, and (ii) that portion of Long Island (excluding New York City) in the State of New York which is within the drainage area of Long Island Sound, and "(8) Long Island Sound except the portion thereof which lies west of a line extended from the Connecticut-New York boundary at the northern shore of the Sound to the New York City-Nassau County boundary at the southern shore of the Sound. "(b) The determination set forth in subsection (a) of this section is made in accordance with the request of the Commission, and is concurred in by the Water Resources Council and by the Governors of the States within the jurisdiction of the Commission. "Sec. 3. Membership of Commission. It is hereby determined, in accordance with section 202 of the Act, that the Commission shall consist of the following: "(1) a Chairman to be appointed by the President, "(2) one member from each of the following Federal departments and agencies: Department of Agriculture, Department of the Army, Department of Commerce, Department of Health, Education, and Welfare, Department of Housing and Urban Development, Department of the Interior, Department of Transportation, Atomic Energy Commission, and Federal Power Commission, each such member to be appointed by the head of each department or independent agency he represents, "(3) one member from each of the following States: Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, and New York, and "(4) one member from each interstate agency created by an interstate compact to which the consent of Congress has been given and whose jurisdiction extends to the waters of the area specified in section 2." RICHARD NIXON The White House April 24, 1970

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Referenced By Later Executive Orders (1)

Subsequent presidents who cited, amended, continued, or revoked this directive in later orders.

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Scholarly & Legal Citations

Exec. Order No. 11,528 (Apr. 24, 1970), https://executiveordersarchive.org/orders/app-executive-order-11528-changing-the-jurisdiction-and-membership-the-new-england-river.