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Executive Order 5638 ⚖️⚠️ Zone 3: Lowest Ebb Constitutional Friction / Overreach (-0.19) 📜 Art. II §2: Commander-in-Chief / War Prerogative Tension

Executive Order 5638-A—Assignment of Frequencies to Government Radio Stations

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Monday, June 8, 1931
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3 min read (533 words)

Executive Brief • At a Glance

⏱️ 3 min read (533 words) • ● In Effect
🎯 Primary Mandate

I, Herbert Hoover, President of the United States of America, pursuant to the authority vested in me by law, do hereby allocate frequencies to the Government stations as follows: The stations listed herein may use other frequencies for the purpose of selecting a frequency more suitable for a particular service prior to requesting authority to change the frequency, provided a notice is first submitted to the Interdepartment Radio Advisory Committee and also a notice to the Federal Radio Commission, if the frequency is not included in the Executive order, on the proviso that it will cease operation on notice of interference from the Interdepartment Radio Advisory Committee or the Federal Radio Commission and such use shall not be for more…

⚖️ Constitutional Footing
⚖️⚠️ Zone 3: Lowest Ebb
Incompatible with Expressed Will of Congress or High Friction
📜 Art. II §2: Commander-in-Chief / War Prerogative Tension
🏛️ 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 Herbert Hoover on June 8, 1931, this order concerns Assignment of Frequencies to Government Radio Stations. I, Herbert Hoover, President of the United States of America, pursuant to the authority vested in me by law, do hereby allocate frequencies to the Government stations as follows: The stations listed herein may use other frequencies for the purpose of selecting a frequency more suitable for a particular service prior to requesting authority to change the frequency, provided a notice is first submitted to the…

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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I, Herbert Hoover, President of the United States of America, pursuant to the authority vested in me by law, do hereby allocate frequencies to the Government stations as follows: The stations listed herein may use other frequencies for the purpose of selecting a frequency more suitable for a particular service prior to requesting authority to change the frequency, provided a notice is first submitted to the Interdepartment Radio Advisory Committee and also a notice to the Federal Radio Commission, if the frequency is not included in the Executive order, on the proviso that it will cease operation on notice of interference from the Interdepartment Radio Advisory Committee or the Federal Radio Commission and such use shall not be for more…

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 3 (Lowest Ebb)
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"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

— Justice Robert H. Jackson, Youngstown Sheet & Tube Co. v. Sawyer (1952) Incompatible with Expressed Will of Congress or High Friction
JM

James Madison

Separation of Powers & Legislative Primacy

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny." — Federalist No. 47 (1788)

Madison would express grave alarm over this order. By asserting independent authority in tension with legislative limits or the Bill of Rights, the Executive risks collapsing the separation of powers into unilateral rule. Under the Madisonian model, no emergency justifies the Executive substituting its decree for a deliberative Act of Congress.

Madisonian Stance: Strict Dissent (Overreach)
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 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: Vehement Objection
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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.

⚠️ Elevated Constitutional Friction
63 / 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

High Friction

Invokes broad unilateral or emergency executive authorities that test the constitutional boundary of the Take Care Clause.

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

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

High Friction

The order asserts independent Article II prerogative against statutory constraints, reallocates funds without explicit appropriation, or stretches executive power into realms constitutionally reserved to the legislature or judiciary.

Benchmark: Incompatible with Expressed Will of Congress or High Friction
⚖️ Audit Synthesis

This directive engages significant constitutional friction across statutory authorization, legislative prerogatives, or individual liberties.

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
533
3,257 characters
Estimated Read Time
3 min
@ 200 words / min
Flesch-Kincaid
22.2
Post-Graduate Legal
Language Tone Score
-0.19
Constitutional Friction / Overreach
How is this scored?
Text size:

Official Archival Text

View Source Document

Whereas Section 6 of the Radio Act of 1927 (44 Stat. 1165) provides as follows: "Radio stations belonging to and operated by the United States shall not be subject to the provisions of sections 1, 4, and 5 of this Act. All such Government stations shall use such frequencies or wave lengths as shall be assigned to each or to each class by the President. All such stations, except stations on board naval and other Government vessels while at sea or beyond the limits of the continental United States, when transmitting any radio communication or signal other than a communication or signal relating to Government business shall conform to such rules and regulations designed to prevent interference with other radio stations and the rights of others as the licensing authority may prescribe. Upon proclamation by the President that there exists war or a threat of war or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations within the jurisdiction of the United States as prescribed by the licensing authority, and may cause the closing of any station for radio communication and the removal therefrom of its apparatus and equipment, or he may authorize the use or control of any such station and/or its apparatus and equipment by any department of the Government under such regulations as he may prescribe, upon just compensation to the owners. Radio stations on board vessels of the United States Shipping Board or the United States Shipping Board Emergency Fleet Corporation or the Inland and Coastwise Waterways Service shall be subject to the provisions of this Act." And Whereas the Government departments using radio find it necessary for efficient operation to make some changes in previous frequency assignments to individual stations which will not add to the total number of frequencies assigned for Government use and have requested that such changes be authorized; Now, Therefore , I, Herbert Hoover, President of the United States of America, pursuant to the authority vested in me by law, do hereby allocate frequencies to the Government stations as follows: The stations listed herein may use other frequencies for the purpose of selecting a frequency more suitable for a particular service prior to requesting authority to change the frequency, provided a notice is first submitted to the Interdepartment Radio Advisory Committee and also a notice to the Federal Radio Commission, if the frequency is not included in the Executive order, on the proviso that it will cease operation on notice of interference from the Interdepartment Radio Advisory Committee or the Federal Radio Commission and such use shall not be for more than one month total. The powers of the stations shown are those at the time of issuance of Executive order and are not limitations upon the stations. The locations given are locations of the transmitting apparatus; and where control points are different, they are given in parentheses. This Executive order supersedes Executive Order No. 5197-A, September 30, 1929. HERBERT HOOVER The White House, June 8, 1931.

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Referenced By Later Executive Orders (2)

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

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Scholarly & Legal Citations

Exec. Order No. 5638 (June 8, 1931), https://executiveordersarchive.org/orders/app-executive-order-5638-assignment-frequencies-government-radio-stations-0.