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Executive Order 7173 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 Art. II §1: Executive Discretion & Internal Operations

Executive Order 7173—Establishing White River Migratory Waterfowl Refuge

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Wednesday, September 4, 1935
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4 min read (757 words)

Executive Brief • At a Glance

⏱️ 4 min read (757 words) • ● In Effect
🎯 Primary Mandate

The following-described lands, consisting of 110,000 acres, more or less, acquired or to be acquired by the United States, in Arkansas, Desha, Monroe, and Phillips Counties, Arkansas, be, and they are hereby, reserved and set apart for the use of the Department of Agriculture, subject to valid existing rights, as a refuge and breeding ground for migratory birds and other wildlife: Provided , That any private lands within the areas described shall become a part of the refuge hereby established upon the acquisition of title or lease thereto by the United States: FIFTH PRINCIPAL MERIDIAN T. 4 S., R. 1 E., sec. 19, W½; sec. 30, W½; sec. 31, SW¼SW¼.

⚖️ Constitutional Footing
⚖️✨ Zone 2: Zone of Twilight
Concurrent Authority / Congressional Silence
📜 Art. II §1: Executive Discretion & Internal Operations
🏛️ Scope & Affected Sectors
Executive Departments & Federal Civil Servants

Plain-English Translation & Framers' Constitutional Analysis

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

Signed by President Franklin D. Roosevelt on September 4, 1935, this order concerns Establishing White River Migratory Waterfowl Refuge. The following-described lands, consisting of 110,000 acres, more or less, acquired or to be acquired by the United States, in Arkansas, Desha, Monroe, and Phillips Counties, Arkansas, be, and they are hereby, reserved and set apart for the use of the Department of Agriculture, subject to valid existing rights, as a refuge and breeding ground for migratory birds and other wildlife: Provided , That any private lands…

Constitutional Assessment: This action represents an orderly exercise of Article II administrative discretion, managing the internal machinery and personnel of the executive branch without abridging the ancient liberties of the people.

Key Directives & Operative Actions

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The following-described lands, consisting of 110,000 acres, more or less, acquired or to be acquired by the United States, in Arkansas, Desha, Monroe, and Phillips Counties, Arkansas, be, and they are hereby, reserved and set apart for the use of the Department of Agriculture, subject to valid existing rights, as a refuge and breeding ground for migratory birds and other wildlife: Provided , That any private lands within the areas described shall become a part of the refuge hereby established upon the acquisition of title or lease thereto by the United States: FIFTH PRINCIPAL MERIDIAN T. 4 S., R. 1 E., sec. 19, W½; sec. 30, W½; sec. 31, SW¼SW¼.

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This refuge shall be known as the White River Migratory Waterfowl Refuge.

Constitutional & Societal Entities Impacted

🏛️ Executive Departments & Federal Civil Servants

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 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
757
3,748 characters
Estimated Read Time
4 min
@ 200 words / min
Flesch-Kincaid
3.6
Grade 4
Language Tone Score
+0.02
Constitutional Neutral
How is this scored?
Text size:

Official Archival Text

View Source Document

ARKANSAS By virtue of and pursuant to the authority vested in me as President of the United States, and in order to effectuate further the purposes of the Migratory Bird Conservation Act (45 Stat. 1222), it is ordered that the following-described lands, consisting of 110,000 acres, more or less, acquired or to be acquired by the United States, in Arkansas, Desha, Monroe, and Phillips Counties, Arkansas, be, and they are hereby, reserved and set apart for the use of the Department of Agriculture, subject to valid existing rights, as a refuge and breeding ground for migratory birds and other wildlife: Provided , That any private lands within the areas described shall become a part of the refuge hereby established upon the acquisition of title or lease thereto by the United States: FIFTH PRINCIPAL MERIDIAN T. 4 S., R. 1 E., sec. 19, W½; sec. 30, W½; sec. 31, SW¼SW¼. T. 5 S., R. 1 E., sec. 6, lots 2, 3, and 4 in NW¼; secs. 30 and 31. T. 6 S., R. 1 E., sec. 6, all. T. 7 S., R. 1 E., sec. 7, W½W½. T. 3 S., R. 1 W., sec. 8, all; sec. 9, W½; sec. 15, W½ and all SE¼ lying southwest of survey 2383; secs. 16 and 17; sec. 18, NE¼, all west of the White River, and SE¼ east of the White River; sec. 19, all east and west of the White River; secs. 20, 21, and 22; sec. 23, W½; sec. 26, W½NE¼, W½, and W½SE¼; sec. 27, all; secs. 28 and 29, all east and west of the White River; sec. 30, all east of the White River, and fractional NE¼, N½NW¼, and N½SE¼, all west of the White River; sec. 32, fractional NE¼ west of the White River, and all east of the White River; sec. 33, all east and west of the White River; sec. 34, all; sec. 35, W½NE¼, W½, and SE¼; sec. 36, fractional SW¼SW¼. T. 4 S., R. 1 W., sec. 1, all southwest of surveys 2328 and 2345; sec. 2, all; sec. 3, all east and west of the White River; sec. 4, all east of the White River, and fractional SE¼SE¼ west of the White River; sec. 5, all east of the White River; sec. 9, fractional NE¼NE¼ east of the White River and fractional E½ west of the White River; sec. 10, all east and west of the White River; secs. 11, 12, and 13; secs. 14 and 15, all north and south of the White River; sec. 21, fractional S½SE¼ northwest of the Chute and fractional S½S½ south of the Chute; secs. 22 and 23, all north and south of the Chute; sec. 24, all north and south of the White River; sec. 25, all; sec. 26, all east and south of the Chute; sec. 27, all north, east, and south of the Chute; sec. 28, all east of the Chute, and fractional NE¼ and N½SE¼ west and south of the Chute; secs. 34 and 35, all east and west of the Chute; sec. 36, all; survey numbers 2328 and 2345, all southwest of Indian Bay. T. 5 S., R. 1 W., secs. 1, 2, and 3; sec. 4, all east of the Chute and fractional E½NE¼ west of the Chute; secs. 10 to 15, inclusive; sec. 16, E½; sec. 20, E½; secs. 21 to 29, inclusive; secs. 31 to 36, inclusive. T. 6 S., R. 1 W., all. T. 7 S., R. 1 W., secs. 1 to 12, inclusive; secs. 14 to 23, inclusive; secs. 26 to 35, inclusive. T. 8 S., R. 1 W., secs. 5 to 8, inclusive; secs. 17 to 20, inclusive; secs. 29 and 30; sec. 31, all east of the Arkansas River; sec. 32, all, T. 3 S., R. 2 W., secs. 11 and 12, all south of the White River; sec. 13, all west of the White River; secs. 14 and 23; sec. 24, all east and west of the White River; sec. 25, fractional NE¼NE¼ east of the White River. T. 6 S., R. 2 W., secs. 1 and 2; sec. 11, N½; sec. 12, all; sec. 13, N½, fractional S½SW¼, NE¼SE¼, and S½SE¼; sec. 24, E½. T. 7 S., R. 2 W., secs. 1 and 2; secs. 11 to 14, inclusive; secs. 22 to 27, inclusive; secs. 34, 35, and 36. T. 8 S., R. 2 W., sec. 1, all. This refuge shall be known as the White River Migratory Waterfowl Refuge. FRANKLIN D. ROOSEVELT The White House, September 4, 1935.

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Scholarly & Legal Citations

Exec. Order No. 7173 (Sept. 4, 1935), https://executiveordersarchive.org/orders/app-executive-order-7173-establishing-white-river-migratory-waterfowl-refuge.