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Executive Order 10440 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 Art. II §3: Administrative Management & Civil Service

Executive Order 10440—Amendment of Civil Service Rule VI

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Tuesday, March 31, 1953
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3 min read (632 words)

Executive Brief • At a Glance

⏱️ 3 min read (632 words) • ● In Effect
🎯 Primary Mandate

Civil Service Rule VI, as established by Executive Order No. 9830 of February 24, 1947, and as amended by Executive Order No. 9973 of June 28, 1948, is hereby further amended to read as follows: RULE VI—EXCEPTIONS FROM THE COMPETITIVE SERVICE § 6.1 Authority to except positions from the competitive service, (a) The Commission is authorized to except from the competitive service and to place in appropriate schedules positions to which appointments through competitive examination are not practicable and, upon the recommendation of the agency concerned, positions which are of a confidential or policy-determining character.

⚖️ Constitutional Footing
⚖️✨ Zone 2: Zone of Twilight
Concurrent Authority / Congressional Silence
📜 Art. II §3: Administrative Management & Civil Service
🏛️ Scope & Affected Sectors
Armed Forces & Military Establishments Merchants, Importers & Commercial Enterprises 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 Dwight D. Eisenhower on March 31, 1953, this order concerns Amendment of Civil Service Rule VI. Civil Service Rule VI, as established by Executive Order No. 9830 of February 24, 1947, and as amended by Executive Order No. 9973 of June 28, 1948, is hereby further amended to read as follows: RULE VI—EXCEPTIONS FROM THE COMPETITIVE SERVICE § 6.1 Authority to except positions from the competitive service, (a) The Commission is authorized to except from the competitive service and to place in appropriate schedules…

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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Civil Service Rule VI, as established by Executive Order No. 9830 of February 24, 1947, and as amended by Executive Order No. 9973 of June 28, 1948, is hereby further amended to read as follows: RULE VI—EXCEPTIONS FROM THE COMPETITIVE SERVICE § 6.1 Authority to except positions from the competitive service, (a) The Commission is authorized to except from the competitive service and to place in appropriate schedules positions to which appointments through competitive examination are not practicable and, upon the recommendation of the agency concerned, positions which are of a confidential or policy-determining character.

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Such exceptions from the competitive service shall be effective upon publication thereof in the Federal Register.

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Positions excepted by the Commission shall be listed in the Commission's annual report for the fiscal year in which the exceptions are made.

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The Commission shall decide whether the duties of any particular position are such that it may be classified as an excepted position. § 6.2 Classes of excepted positions.

Constitutional & Societal Entities Impacted

🏛️ Armed Forces & Military Establishments 🏛️ Merchants, Importers & Commercial Enterprises 🏛️ Executive Departments & Federal Civil Servants
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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)
§

"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
43 / 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

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
632
3,912 characters
Estimated Read Time
3 min
@ 200 words / min
Flesch-Kincaid
13.4
College Level
Language Tone Score
+0.02
Constitutional Neutral
How is this scored?
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Official Archival Text

View Source Document

By virtue of the authority vested in me by section 1753 of the Revised Statutes of the United States (5 U.S.C. 631), by the Civil Service Act of January 16, 1883 (22 Stat. 403), and by section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows: SECTION 1. Civil Service Rule VI, as established by Executive Order No. 9830 of February 24, 1947, and as amended by Executive Order No. 9973 of June 28, 1948, is hereby further amended to read as follows: RULE VI—EXCEPTIONS FROM THE COMPETITIVE SERVICE § 6.1 Authority to except positions from the competitive service, (a) The Commission is authorized to except from the competitive service and to place in appropriate schedules positions to which appointments through competitive examination are not practicable and, upon the recommendation of the agency concerned, positions which are of a confidential or policy-determining character. Such exceptions from the competitive service shall be effective upon publication thereof in the Federal Register. Positions excepted by the Commission shall be listed in the Commission's annual report for the fiscal year in which the exceptions are made. (b) The Commission shall decide whether the duties of any particular position are such that it may be classified as an excepted position. § 6.2 Classes of excepted positions. The Commission shall classify positions that it excepts as follows: Schedule A. Positions other than those of a confidential or policy-determining character for which it is not practicable to examine shall be placed in Schedule A. Schedule B. Positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination shall be placed in Schedule B. Appointments to these positions shall be subject to such noncompetitive examination as may be prescribed by the Commission. Schedule C. Positions of a confidential or policy-determining character shall be placed in Schedule C. § 6.3 Status of incumbents of excepted positions. Persons given excepted appointments to positions listed in Schedules A, B, and C or to positions excepted from the competitive service by statute shall not acquire a competitive status by reason of such appointments. Persons appointed to such positions in the same manner as competitive positions are filled may acquire a competitive status In accordance with the Civil Service Rules and Regulations. § 6.4 Removal of incumbents of excepted positions. Except as may be required by the Veterans' Preference Act, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedule C or from positions excepted from the competitive service by statute. The Civil Service Rules and Regulations shall apply to removals from positions listed in Schedules A and B of persons who have competitive status, however they may have been or may be appointed. § 6.5 Assignment of excepted employees. Persons who are appointed to excepted positions without competitive examination shall not be assigned to the work of a position in the competitive service without prior approval of the Commission. § 6.6 Revocation of exceptions. The Commission may remove any position from or may revoke in whole or in part any provision of Schedule A or B, and, with the concurrence of the agency concerned, may remove any position from or may revoke in whole or In part any provision of Schedule C. Such changes shall become effective upon publication thereof in the Federal Register. SEC. 2. The Commission shall classify the positions now listed in Schedules A and B into Schedules A, B, and C as provided in this order. The positions in Schedules A and B as presently constituted shall continue therein until the Commission has taken action with respect to such positions under this order. DWIGHT D. EISENHOWER

THE WHITE HOUSE, #signature

March 31, 1953.

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Referenced By Later Executive Orders (1)

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

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Scholarly & Legal Citations

Exec. Order No. 10,440 (Mar. 31, 1953), https://executiveordersarchive.org/orders/app-executive-order-10440-amendment-civil-service-rule-vi.