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Executive Order 12864 Revoked 🏛️✅ Zone 1: Maximum Authority Constitutional Fidelity (+0.41) 📜 5th Amend: Regulatory Execution with Due Process

Executive Order 12864—United States Advisory Council on the National Information Infrastructure

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Wednesday, September 15, 1993
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3 min read (594 words)

Executive Brief • At a Glance

⏱️ 3 min read (594 words) • ● Revoked
🎯 Primary Mandate

The Council shall advise the Secretary on matters related to the development of the National Information Infrastructure.

⚖️ Constitutional Footing
🏛️✅ Zone 1: Maximum Authority
Express or Implied Congressional Authorization
📜 5th Amend: Regulatory Execution with Due Process
🏛️ Scope & Affected Sectors
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 William J. Clinton on September 15, 1993, this order concerns United States Advisory Council on the National Information Infrastructure. There is established in the Commerce Department the "United States Advisory Council on the National Information Infrastructure" ("Council"). The Council shall consist of not more than 25 members to be appointed by the Secretary of Commerce ("Secretary").

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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Functions

The Council shall advise the Secretary on matters related to the development of the National Information Infrastructure.

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Administration

The heads of executive agencies shall, to the extent permitted by law, provide to the Council such information as it may require for the purpose of carrying out its functions.

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General

Notwithstanding any other Executive order, the functions of the President under the Act that are applicable to the Council, except that of reporting to Congress, shall be performed by the Secretary in accordance with guidelines that have been issued by the Administrator of General Services.

Constitutional & Societal Entities Impacted

🏛️ Executive Departments & Federal Civil Servants 🏛️ Private Citizens & Property Owners
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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 1 (Maximum Authority)
§

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

— Justice Robert H. Jackson, Youngstown Sheet & Tube Co. v. Sawyer (1952) Express or Implied Congressional Authorization
JM

James Madison

Separation of Powers & Legislative Primacy

"The constitutional magistracy was designed not to invent policy, but to be the faithful instrument of the laws passed by the people's representatives." — Speech in the First Congress (1789)

Madison would approve the structural posture of this order. The President acts strictly in subordination to statutory authority granted under Article II, Section 3 ("take Care that the Laws be faithfully executed"). The checks and balances hold firm because the policy origin remains with the legislature.

Madisonian Stance: Concurring (Statutory)
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: Supportive of Execution
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
39 / 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

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

High Friction

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

Due Process & Individual Rights

Moderate Friction

Applies regulatory or compliance standards to private contractors or commercial entities.

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

Youngstown Jacksonian Tier

Low Friction

The President operates strictly as the constitutional Chief Executive, carrying out policy established by Congress with strong statutory backing.

Benchmark: Express or Implied Congressional Authorization
⚖️ 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
594
4,000 characters
Estimated Read Time
3 min
@ 200 words / min
Flesch-Kincaid
18.8
Post-Graduate Legal
Language Tone Score
+0.41
Constitutional Fidelity
How is this scored?
Text size:

Official Archival Text

View Source Document

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2) ("Act"), and section 301 of title 3, United States Code, it is hereby ordered as follows:

Section 1. #sec-1

Establishment. (a) There is established in the Commerce Department the "United States Advisory Council on the National Information Infrastructure" ("Council"). The Council shall consist of not more than 25 members to be appointed by the Secretary of Commerce ("Secretary"). (b) The Secretary shall appoint from among the members of the Council officials to serve as chairperson(s) or vice-chairperson(s) of the Council as he shall deem appropriate.

Sec. 2. #sec-2

Functions. (a) The Council shall advise the Secretary on matters related to the development of the National Information Infrastructure. The National Information Infrastructure shall be the integration of hardware, software, and skills that will make it easy and affordable to connect people with each other, with computers, and with a vast array of services and information resources. (b) The Council shall advise the Secretary on a national strategy for promoting the development of a National Information Infrastructure. Issues that the Council may address include, but are not limited to: (1) the appropriate roles of the private and public sectors in developing the National Information Infrastructure; (2) a vision for the evolution of the National Information Infrastructure and its public and commercial applications; (3) the impact of current and proposed regulatory regimes on the evolution of the National Information Infrastructure; (4) national strategies for maximizing the benefits of the National Information Infrastructure, as measured by job creation, economic growth, increased productivity, and enhanced quality of life; (5) national strategies for developing and demonstrating applications in areas such as electronic commerce, agile manufacturing, life-long learning, health care, government services, and civic networking; (6) national security, emergency preparedness, system security, and network protection implications; (7) national strategies for maximizing interconnection and inter-operability of communications networks; (8) international issues associated with the National Information Infrastructure; (9) universal access; and (10) privacy, security, and copyright issues. (c) The chairperson(s) may, from time to time, invite experts to submit information to the Council and may form subcommittees of the Council to review specific issues.

Sec. 3. #sec-3

Administration. (a) The heads of executive agencies shall, to the extent permitted by law, provide to the Council such information as it may require for the purpose of carrying out its functions. (b) Members of the Council shall serve without compensation but shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law, including 5 U.S.C. 5701–5707 and section 7(d) of the Act, for persons serving intermittently in government service. (c) The Department of Commerce shall provide the Council with administrative services, facilities, staff, and other support services necessary for the performance of its functions.

Sec. 4. #sec-4

General. (a) Notwithstanding any other Executive order, the functions of the President under the Act that are applicable to the Council, except that of reporting to Congress, shall be performed by the Secretary in accordance with guidelines that have been issued by the Administrator of General Services. (b) The Council shall exist for a period of two years from the date of this order, unless the Council’s charter is subsequently extended prior to the aforementioned date. (c) Members of the Council and its subcommittee shall not be considered special government employees for any purpose or for purposes of 18 U.S.C. 201–203, 205, 207–209, and 218–219. William J. Clinton

THE WHITE HOUSE, #signature

September 15, 1993.

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Referenced By Later Executive Orders (4)

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

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Scholarly & Legal Citations

Exec. Order No. 12,864 (Sept. 15, 1993), https://executiveordersarchive.org/orders/app-executive-order-12864-united-states-advisory-council-the-national-information.