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Executive Orders Historical Archive
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Executive Order 13394 Revoked 🏛️✅ Zone 1: Maximum Authority Constitutional Fidelity (+0.41) 📜 Art. II §2: Commander-in-Chief Supervisory Authority

Executive Order 13394—Providing an Order of Succession Within the Department of Defense

George W. Bush George W. Bush
•
Thursday, December 22, 2005
•
2 min read (500 words)
•
70 Fed. Reg. 76665

Executive Brief • At a Glance

⏱️ 2 min read (500 words) • ● Revoked
🎯 Primary Mandate

No individual who is serving in an office listed in section 2(a)-(m) in an acting capacity shall act as Secretary pursuant to this order.

View all 2 directives ↓
⚖️ Constitutional Footing
🏛️✅ Zone 1: Maximum Authority
Express or Implied Congressional Authorization
📜 Art. II §2: Commander-in-Chief Supervisory Authority
Framers' constitutional debate ↓
🏛️ Scope & Affected Sectors
Armed Forces & Military Establishments Merchants, Importers & Commercial Enterprises Executive Departments & Federal Civil Servants
Inspect unabridged text ↓

Plain-English Translation & Framers' Constitutional Analysis

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

Signed by President George W. Bush on December 22, 2005, this order concerns Providing an Order of Succession Within the Department of Defense. Subject to the provisions of section 3 of this order, the officers named in section 2, in the order listed, shall act as and perform the functions and duties of the office of the Secretary of Defense (Secretary) during any period when the Secretary has died, resigned, or is otherwise unable to perform the functions and duties of the office of Secretary. Sec. 2. Order of Succession.

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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Exceptions

No individual who is serving in an office listed in section 2(a)-(m) in an acting capacity shall act as Secretary pursuant to this order.

▪
Revocation

Executive Order No. 13000 of April 24, 1996, and the President's memorandum of June 2, 2005, entitled: "Order of Succession of Officers to Act as Secretary of Defense," are hereby revoked.

Constitutional & Societal Entities Impacted

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

Policy Areas & Topics

🏷️ National Security & Defense 🏷️ Technology & Cybersecurity
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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

"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
32 / 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

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

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
500
3,031 characters
Estimated Read Time
2 min
@ 200 words / min
Flesch-Kincaid
20.3
Post-Graduate Legal
Language Tone Score
+0.41
Constitutional Fidelity
How is this scored?
Text size:

Official Archival Text

View Source Document
📑Sections Outline (5 sections)
Sec. 1Sec. 2: Order of SuccessionSec. 3: ExceptionsSec. 4: Judicial ReviewSec. 5: Revocation

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et. seq., it is hereby ordered as follows:

Section 1. #sec-1

Subject to the provisions of section 3 of this order, the officers named in section 2, in the order listed, shall act as and perform the functions and duties of the office of the Secretary of Defense (Secretary) during any period when the Secretary has died, resigned, or is otherwise unable to perform the functions and duties of the office of Secretary.

Sec. 2. #sec-2

Order of Succession. (a) Deputy Secretary of Defense; (b) Under Secretary of Defense for Intelligence; (c) Under Secretary of Defense for Policy; (d) Under Secretary of Defense for Acquisition, Technology, and Logistics; (e) Secretary of the Army; (f) Secretary of the Air Force; (g) Secretary of the Navy; (h) Under Secretary of Defense for Personnel and Readiness and the Under Secretary of Defense (Comptroller); (i) Deputy Under Secretary of Defense for Acquisition and Technology, Deputy Under Secretary of Defense for Policy, and Deputy Under Secretary of Defense for Personnel and Readiness; (j) General Counsel of the Department of Defense, the Assistant Secretaries of Defense, and the Director of Operational Test and Evaluation; (k) Deputy Under Secretary of Defense for Logistics and Material Readiness and the Director of Defense Research and Engineering; (l) Under Secretaries of the Army, the Navy, and the Air Force; and (m) Assistant Secretaries of the Army, the Navy, and the Air Force, and General Counsels of the Army, the Navy, and the Air Force.

Sec. 3. #sec-3

Exceptions. (a) No individual who is serving in an office listed in section 2(a)-(m) in an acting capacity shall act as Secretary pursuant to this order. (b) Precedence among officers designated within the same subsection of section 2 of this order shall be determined by the order in which they have been appointed to such office by the President. Where officers designated within the same subsection of section 2 of this order are appointed on the same date, precedence will be determined by the order in which they have taken the oath to serve in that office. (c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Secretary.

Sec. 4. #sec-4

Judicial Review. This order is intended to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.

Sec. 5. #sec-5

Revocation. Executive Order No. 13000 of April 24, 1996, and the President's memorandum of June 2, 2005, entitled: "Order of Succession of Officers to Act as Secretary of Defense," are hereby revoked. George W. Bush The White House, December 22, 2005.

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Referenced By Later Executive Orders (1)

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

References Executive Order 13533—Providing an Order of Succession Within the Department of Defense
Barack Obama • 2010-03-01
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Scholarly & Legal Citations 

Exec. Order No. 13,394, 70 Fed. Reg. 76,665 (Dec. 22, 2005).