By virtue of the authority vested in me by section 1753 of the Revised Statutes of the United States (U.S.C., title 5, sec. 631), and as President of the United States, the Executive Order of January 17, 1873, as amended, prohibiting, with certain exceptions, Federal officers and employees from holding state, territorial, and municipal offices, is hereby further amended so as (1) to permit officers and employees of the Social Security Board, Federal Security Agency, upon recommendation of the Board and approval of the Federal Security Administrator, to hold office under state, territorial, and municipal governments engaged in cooperative and related work with the Social Security Board, as authorized by Federal and State laws: Provided , that the services to be performed by them shall pertain to such work and shall not in any manner interfere or conflict with the performance of their duties during their regular hours of duty as officers or employees of the Federal Government; and (2) to permit state, territorial, and municipal officers or employees engaged in cooperative and related work with the Social Security Board, unless prohibited by law, to accept appointment in and serve under the Social Security Board, Federal Security Agency, when the Board and the Administrator deem such employment necessary to secure a more efficient administration of the duties imposed upon the Social Security Board: Provided , that the appointment of any such officer or employee to a position subject to civil-service laws under the Social Security Board shall be made in accordance with civil-service laws, rules, and regulations. FRANKLIN D. ROOSEVELT The White House, April 29, 1940.
Executive Order 8399—Amending the Executive Order of January 17, 1873, To Permit Officers and Employees of the Social Security Board, Federal Security Agency, To Hold State, Territorial and Municipal Offices, Etc.
Executive Brief • At a Glance
The Executive Order of January 17, 1873, as amended, prohibiting, with certain exceptions, Federal officers and employees from holding state, territorial, and municipal offices, is hereby further amended so as (1) to permit officers and employees of the Social Security Board, Federal Security Agency, upon recommendation of the Board and approval of the Federal Security Administrator, to hold office under state, territorial, and municipal governments engaged in cooperative and related work with the Social Security Board, as authorized by Federal and State laws: Provided , that the services to be performed by them shall pertain to such work and shall not in any manner interfere or conflict with the performance of their duties during their…
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 April 29, 1940, this order concerns Amending the Executive Order of January 17, 1873, To Permit Officers and Employees of the Social Security Board, Federal Security Agency, To Hold State, Territorial and Municipal Offices, Etc. The Executive Order of January 17, 1873, as amended, prohibiting, with certain exceptions, Federal officers and employees from holding state, territorial, and municipal offices, is hereby further amended so as (1) to permit officers and employees of the Social Security Board, Federal Security Agency, upon recommendation of the Board and approval of the Federal Security Administrator, to hold office under state…
Key Directives & Operative Actions
The Executive Order of January 17, 1873, as amended, prohibiting, with certain exceptions, Federal officers and employees from holding state, territorial, and municipal offices, is hereby further amended so as (1) to permit officers and employees of the Social Security Board, Federal Security Agency, upon recommendation of the Board and approval of the Federal Security Administrator, to hold office under state, territorial, and municipal governments engaged in cooperative and related work with the Social Security Board, as authorized by Federal and State laws: Provided , that the services to be performed by them shall pertain to such work and shall not in any manner interfere or conflict with the performance of their duties during their…
Constitutional & Societal Entities Impacted
Policy Areas & Topics
The Framers' Constitutional Council
1787 PrismEvaluating this order against the constitutional debates of 1787 and the limits of Article II executive power.
"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."
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.
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.
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.
Five Measurable "Constitutional Friction" Dimensions
An objective audit measuring potential separation-of-powers tension against the United States Constitution and established Supreme Court doctrine.
Legislative Encroachment & Purse
Administers commerce or fiscal programs requiring ongoing statutory delegation and legislative oversight.
Executive Scope & Faithfulness
Exercises standard supervisory executive authority to faithfully execute existing statutes.
Federalism & State Sovereignty
Engages state and local partners in cooperative federalism programs.
Due Process & Individual Rights
Applies regulatory or compliance standards to private contractors or commercial entities.
Youngstown Jacksonian Tier
The President operates strictly as the constitutional Chief Executive, carrying out policy established by Congress with strong statutory backing.
This order operates within Justice Jackson’s Zone of Twilight, resting upon concurrent presidential authority or congressional silence.
Scholarly & Legal Citations
Exec. Order No. 8399 (Apr. 29, 1940), https://executiveordersarchive.org/orders/app-executive-order-8399-amending-the-executive-order-january-17-1873-permit-officers-and.