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Executive Order 11737 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 5th Amend: Regulatory Execution with Due Process

Executive Order 11737—Enlargement of the Upper Mississippi River Basin Commission

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Friday, September 7, 1973
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3 min read (537 words)

Executive Brief • At a Glance

⏱️ 3 min read (537 words) • ● In Effect
🎯 Primary Mandate

Executive Order No. 11659 of March 22, 1972, is hereby amended as follows: (1) Section 2 is amended to read as follows: "SEC. 2 Jurisdiction of the Commission.

⚖️ Constitutional Footing
⚖️✨ Zone 2: Zone of Twilight
Concurrent Authority / Congressional Silence
📜 5th Amend: Regulatory Execution with Due Process
🏛️ Scope & Affected Sectors
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 September 7, 1973, this order concerns Enlargement of the Upper Mississippi River Basin Commission. Executive Order No. 11659 of March 22, 1972, is hereby amended as follows: (1) Section 2 is amended to read as follows: "SEC. 2 Jurisdiction of the Commission. It is hereby determined that the jurisdiction of the Upper Mississippi River Basin Commission referred to in Section 1 of this order shall extend to those portions of the States of Illinois, Iowa, Minnesota, Missouri, Wisconsin, and North Dakota that are…

Constitutional Assessment: Evaluated against the Fifth Amendment, this action touches upon property or economic rights. An early statesman would insist upon strict adherence to due process of law and the constitutional guarantee that private holdings shall not be encumbered or taken for public purposes without just compensation and lawful process.

Key Directives & Operative Actions

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Executive Order No. 11659 of March 22, 1972, is hereby amended as follows: (1) Section 2 is amended to read as follows: "SEC. 2 Jurisdiction of the Commission.

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It is hereby determined that the jurisdiction of the Upper Mississippi River Basin Commission referred to in Section 1 of this order shall extend to those portions of the States of Illinois, Iowa, Minnesota, Missouri, Wisconsin, and North Dakota that are located within the Upper Mississippi, Souris, Red, or Rainy River drainage basins.

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The Upper Mississippi River drainage basin is defined as the drainage basin of the Mississippi River above the mouth of the Ohio River, excluding the drainage basin of the Missouri River above a point immediately below the mouth of the Gasconade River." (2) Section 3(3) is amended to read as follows: "(3) one member from each of the following States: Illinois, Iowa, Minnesota, Missouri, Wisconsin, and North Dakota,".

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Section 5 is amended to read as follows: "SEC. 5.

Constitutional & Societal Entities Impacted

🏛️ Sovereign State Governments & Localities 🏛️ Executive Departments & Federal Civil Servants 🏛️ Private Citizens & Property Owners

Policy Areas & Topics

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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

"A feeble Executive implies a feeble execution of the government; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government." — Federalist No. 70 (1788)

Hamilton would view this directive as the natural and indispensable functioning of administrative leadership. Without the power to coordinate agencies, manage personnel, and resolve operational ambiguities, the modern presidency would be reduced to an impotent figurehead.

Hamiltonian Stance: Defends Vigor & Dispatch
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: High Bill of Rights Scrutiny
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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
38 / 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

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
537
3,355 characters
Estimated Read Time
3 min
@ 200 words / min
Flesch-Kincaid
13.5
College Level
Language Tone Score
+0.02
Constitutional Neutral
How is this scored?
Text size:

Official Archival Text

View Source Document

The Governors of the member States of the Upper Mississippi River Basin Commission and of the Souris-Red-Rainy River Basins Commission, together with the Water Resources Council, have requested, or concurred in, the enlargement of the Upper Mississippi River Basin Commission to include those portions of the States of Minnesota and North Dakota that are drained by the Souris-Red-Rainy Rivers system. The Souris-Red-Rainy River Basins Commission terminated on June 30, 1973, by operation of Section 7 of Executive Order No. 11359 of June 20, 1967, as amended. I have determined that it would be in the public interest to comply with the above request. Now, THEREFORE, by virtue of the authority vested in me by Section 201 of the Water Resources Planning Act (42 U.S.C. 1962b), and as President of the United States, it is ordered as follows: SECTION 1. Executive Order No. 11659 of March 22, 1972, is hereby amended as follows: (1) Section 2 is amended to read as follows: "SEC. 2 Jurisdiction of the Commission. It is hereby determined that the jurisdiction of the Upper Mississippi River Basin Commission referred to in Section 1 of this order shall extend to those portions of the States of Illinois, Iowa, Minnesota, Missouri, Wisconsin, and North Dakota that are located within the Upper Mississippi, Souris, Red, or Rainy River drainage basins. The Upper Mississippi River drainage basin is defined as the drainage basin of the Mississippi River above the mouth of the Ohio River, excluding the drainage basin of the Missouri River above a point immediately below the mouth of the Gasconade River." (2) Section 3(3) is amended to read as follows: "(3) one member from each of the following States: Illinois, Iowa, Minnesota, Missouri, Wisconsin, and North Dakota,". (3) Section 5 is amended to read as follows: "SEC. 5. Consultation with Adjoining States. The Commission is expected to provide for procedures for consultation with the States of Indiana, Michigan, South Dakota, and Montana on any matter which might affect the water and related land resources of the headwater drainages of the Mississippi River Basin or the drainages of the Souris, Red, or Rainy River Basins in those States and to give notice to those States of meetings of the Commission." (4) Section 6 is hereby redesignated as Section 7 and a new Section 6 is hereby inserted immediately after Section 5 as follows: "SEC. 6 International Coordination. The Chairman of the Commission is hereby authorized and directed to refer to the Council any matters under consideration by the Commission which relate to areas of interest or jurisdiction of the International Joint Commission, United States and Canada. The Council shall consult on these matters as appropriate with the Department of State and the International Joint Commission through its United States Section for the purpose of enhancing international coordination." SEC. 2. All funds, property, records, employees, assets, and obligations of the Souris-Red-Rainy River Basins Commission are, with the concurrence of Governors of the affected States, transferred to the Upper Mississippi River Basin Commission, effective as of July 1, 1973. SEC. 3. Executive Order No. 11359 of June 20, 1967, and Executive Order No. 11635 of December 9, 1971, are hereby superseded. RICHARD NIXON The White House, September 7, 1973.

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Scholarly & Legal Citations

Exec. Order No. 11,737 (Sept. 7, 1973), https://executiveordersarchive.org/orders/app-executive-order-11737-enlargement-the-upper-mississippi-river-basin-commission.