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Executive Order 11958 Amended ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 Art. II §2: Commander-in-Chief Supervisory Authority

Executive Order 11958—Administration of Arms Export Controls

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Tuesday, January 18, 1977
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6 min read (1,145 words)

Executive Brief • At a Glance

⏱️ 6 min read (1,145 words) • ● Amended
🎯 Primary Mandate

The following functions conferred upon the President by the Arms Export Control Act (22 U.S.C. 2751 et seq.), hereinafter referred to as the Act, are delegated as follows: (a) Those under Section 3 of the Act, with the exception of subsections (a) (1), (b), (c) (3) and (c) (4), to the Secretary of State: Provided) That the Secretary of State, in the implementation of the functions delegated to him under Sections 3 (a) and (d) of the Act, is authorized to find, in the case of a proposed transfer of a defense article or related training or other defense service by a foreign country or international organization not otherwise eligible under Section 3 (a) (1) of the Act, whether the proposed transfer will strengthen the security of the United…

⚖️ 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 Foreign Nations & International Entities

Plain-English Translation & Framers' Constitutional Analysis

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

Signed by President Gerald R. Ford on January 18, 1977, this order concerns Administration of Arms Export Controls. Delegation of Functions. The following functions conferred upon the President by the Arms Export Control Act (22 U.S.C. 2751 et seq.), hereinafter referred to as the Act, are delegated as follows: (a) Those under Section 3 of the Act, with the exception of subsections (a) (1), (b), (c) (3) and (c) (4), to the Secretary of State: Provided) That the Secretary of State, in the implementation of the functions delegated…

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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The following functions conferred upon the President by the Arms Export Control Act (22 U.S.C. 2751 et seq.), hereinafter referred to as the Act, are delegated as follows: (a) Those under Section 3 of the Act, with the exception of subsections (a) (1), (b), (c) (3) and (c) (4), to the Secretary of State: Provided) That the Secretary of State, in the implementation of the functions delegated to him under Sections 3 (a) and (d) of the Act, is authorized to find, in the case of a proposed transfer of a defense article or related training or other defense service by a foreign country or international organization not otherwise eligible under Section 3 (a) (1) of the Act, whether the proposed transfer will strengthen the security of the United…

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The Secretary of Defense and the Director of the Arms Control and Disarmament Agency, within their respective areas of responsibility, shall assist the Secretary of State in the preparation of materials for presentation to the Congress under that Section.

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To the extent the standards and criteria for credit and guaranty transactions are based upon national security and financial policies, the Secretary of State shall obtain the prior concurrence of the Secretary of Defense and the Secretary of the Treasury, respectively.

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The Secretary of Defense, in the implementation of the functions delegated to him under Sections 36 (a) and (b) (1) shall consult with the Secretary of State, who shall, with respect to matters related to subparagraphs (D) and (I) of Section 36 (b) (1), consult with the Director of the Arms Control and Disarmament Agency.

Constitutional & Societal Entities Impacted

🏛️ Armed Forces & Military Establishments 🏛️ Sovereign State Governments & Localities 🏛️ Executive Departments & Federal Civil Servants 🏛️ Foreign Nations & International Entities 🏛️ Financial Institutions & Monetary Authorities
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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
52 / 100 friction index
Dimension 1 • Art. I, §1 & §8

Legislative Encroachment & Purse

High Friction

Touches upon core congressional prerogatives: raises appropriations reallocation, tariff imposition, or statutory preemption questions.

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

Executive Scope & Faithfulness

Moderate Friction

Directs internal executive branch machinery, agency workflows, and federal personnel.

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
1,145
6,804 characters
Estimated Read Time
6 min
@ 200 words / min
Flesch-Kincaid
16.7
Post-Graduate Legal
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 the Constitution and statutes of the United States of America, including the Arms Export Control Act, as amended (22 U.S.C. 2751 et seq.), and Section 301 of Title 3 of the United States Code, and as President of the United States of America, it is hereby ordered as follows: SECTION 1. Delegation of Functions. The following functions conferred upon the President by the Arms Export Control Act (22 U.S.C. 2751 et seq.), hereinafter referred to as the Act, are delegated as follows: (a) Those under Section 3 of the Act, with the exception of subsections (a) (1), (b), (c) (3) and (c) (4), to the Secretary of State: Provided) That the Secretary of State, in the implementation of the functions delegated to him under Sections 3 (a) and (d) of the Act, is authorized to find, in the case of a proposed transfer of a defense article or related training or other defense service by a foreign country or international organization not otherwise eligible under Section 3 (a) (1) of the Act, whether the proposed transfer will strengthen the security of the United States and promote world peace. (b) Those under Section 5 to the Secretary of State. (c) Those under Section 21 of the Act, with the exception of the last sentence of subsection (d) and all of subsection (h), to the Secretary of Defense. (d) Those under Section 22 (a) of the Act to the Secretary of Defense. (e) Those under Section 23 of the Act, with the exception of the function of certifying a rate of interest to the Congress as provided by paragraph (2) of that Section, to the Secretary of Defense. (f) Those under Section 24 of the Act to the Secretary of Defense. (g) Those under Section 25 of the Act to the Secretary of State. The Secretary of Defense and the Director of the Arms Control and Disarmament Agency, within their respective areas of responsibility, shall assist the Secretary of State in the preparation of materials for presentation to the Congress under that Section. (h) Those under Section 34 of the Act to the Secretary of State. To the extent the standards and criteria for credit and guaranty transactions are based upon national security and financial policies, the Secretary of State shall obtain the prior concurrence of the Secretary of Defense and the Secretary of the Treasury, respectively. (i) Those under Section 35 (a) of the Act to the Secretary of State. (j) Those under Sections 36 (a) and 36 (b) (1) of the Act, except with respect to the certification of an emergency as provided by subsection (b) (1), to the Secretary of Defense. The Secretary of Defense, in the implementation of the functions delegated to him under Sections 36 (a) and (b) (1) shall consult with the Secretary of State, who shall, with respect to matters related to subparagraphs (D) and (I) of Section 36 (b) (1), consult with the Director of the Arms Control and Disarmament Agency. With respect to those functions under Section 36 (a) (5) and (6), the Secretary of Defense shall consult with the Director of the Office of Management and Budget. (k) Those under Sections 36 (c) and (d) of the Act to the Secretary of State. (l) Those under Section 38 of the Act: (1) to the Secretary of State, except as otherwise provided in this subsection. Designations, including changes in designations, by the Secretary of State of items or categories of items which shall be considered as defense articles and defense services subject to export control under Section 38 shall have the concurrence of the Secretary of Defense; (2) to the Secretary of the Treasury, to the extent they relate to the control of the import of defense articles and defense services. In carrying out such functions, the Secretary of the Treasury shall be guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States. Designations including changes in designations, by the Secretary of the Treasury of items or categories of items which shall be considered as defense articles and defense services subject to import control under Section 38 of the Act shall have the concurrence of the Secretary of State and the Secretary of Defense; (3) to the Secretary of Commerce, to carry out on behalf of the Secretary of State, to the extent such functions involve Section 38 (e) of the Act and are agreed to by the Secretary of State and the Secretary of Commerce. (m) Those under Section 39 (b) of the Act to the Secretary of State. In carrying out such functions, the Secretary of State shall consult with the Secretary of Defense as may be necessary to avoid interference in the application of Department of Defense regulations to sales made under Section 22 of the Act. (n) Those under Sections 42 (c) and (f) of the Act to the Secretary of Defense. SEC. 2. Coordination. (a) In addition to the specific provisions of Section 1 of this Order, the Secretary of State and the Secretary of Defense, in carrying out the functions delegated to them under this Order, shall consult with each other and with the heads of other departments and agencies, including the Secretary of the Treasury, the Administrator of the Agency for International Development and the Director of the Arms Control and Disarmament Agency, on matters pertaining to their responsibilities. (b) In accordance with Section 2 (b) of the Act and under the directions of the President, the Secretary of State, taking into account other United States activities abroad, shall be responsible for the continuous supervision and general direction of sales and exports under the Act, including but not limited to, the negotiation, conclusion, and termination of international agreements, and determining whether there shall be a sale to a country and the amount thereof, and whether there shall be delivery or other performance under such sale or export, to the end that sales and exports are integrated with other United States activities and the foreign policy of the United States is best served thereby. SEC. 3. Allocation of Funds. Funds appropriated to the President for carrying out the Act shall be deemed to be allocated to the Secretary of Defense without any further action of the President. SEC. 4. Revocation. Executive Order No. 11501, as amended, is revoked; except that, to the extent consistent with this Order, all determinations, authorizations, regulations, rulings, certificates, orders, directives, contracts, agreements, and other actions made, issued, taken or entered into under the provisions of Executive Order No. 11501, as amended, and not revoked, superseded or otherwise made inapplicable, shall continue in full force and effect until amended, modified or terminated by appropriate authority. GERALD R. FORD The White House, January 18, 1977.

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Referenced By Later Executive Orders (6)

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

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Scholarly & Legal Citations

Exec. Order No. 11,958 (Jan. 18, 1977), https://executiveordersarchive.org/orders/app-executive-order-11958-administration-arms-export-controls.