Whereas the burden of duties upon the Secretary of War and the Judge Advocate General is becoming increasingly heavy because of the pressure of war conditions; and Whereas the national security and defense, the successful prosecution of the war, and the more efficient administration by the principal officials of the War Department and the Judge Advocate General of their respective offices will be facilitated if certain functions, duties, and powers are exercised by appropriate principal or subordinate officials of the War Department, and other officers of the Judge Advocate General's Department as the case may be. Now, Therefore , by virtue of the authority vested in me by the Constitution and the laws of the United States, particularly by Title I of the First War Powers Act, 1941, approved December 18, 1941 (55 Stat. 838), and as President of the United States and Commander in Chief of the Army of the United States, it is hereby ordered as follows: 1. Subject to such regulations as the Secretary of War may prescribe, the Under Secretary of War and the Assistant Secretary of War are authorized, respectively, to exercise and perform all functions, duties, and powers conferred upon the Secretary of War or the Acting Secretary of War by Article of War 50 1/2 as amended. 2. Subject to such regulations as the Secretary of War may prescribe, the Assistant Judge Advocate General in charge of military justice matters is authorized to exercise and perform all functions, duties, and powers conferred upon the Judge Advocate General by Article of War 46 and by the second, third, fourth, and fifth paragraphs of Article of War 50 1/2. 3. There are hereby transferred to the Under Secretary of War, the Assistant Secretary of War, an the Assistant Judge Advocate General in charge of military justice matters such functions, duties, and powers of the Secretary of War and the Judge Advocate General as may be necessary to effectuate the provisions of this order; but nothing contained in this order shall be deemed to limit or restrict the power and right on the part of the Secretary of War or the Judge Advocate General, in their discretion, to exercise or perform any of the functions, duties, or powers heretofore possessed by or vested in them. 4. The functions, duties, and powers herein transferred or delegated may be exercised and performed by the officials to whom such transfers and delegations are made without the necessity of any signature, approval, ratification, or other act by higher authority, except to the extent required by such regulations as may be prescribed by the Secretary of War; and all officers, officials, and employees of the United States including disbursing, accounting, and auditing officers, shall give the same effect to any acts of those to whom transfers and delegations are made hereunder as if done by the person or persons in whom the functions, duties, and powers were vested prior to such transfers and delegations. FRANKLIN D ROOSEVELT The White House, July 23, 1943.
Executive Order 9363—Redistributing Certain Functions of the Secretary of War and the Judge Advocate General With Respect to Certain Court-Martial Cases
Executive Brief • At a Glance
Subject to such regulations as the Secretary of War may prescribe, the Under Secretary of War and the Assistant Secretary of War are authorized, respectively, to exercise and perform all functions, duties, and powers conferred upon the Secretary of War or the Acting Secretary of War by Article of War 50 1/2 as amended. 2.
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 July 23, 1943, this order concerns Redistributing Certain Functions of the Secretary of War and the Judge Advocate General With Respect to Certain Court-Martial Cases. Subject to such regulations as the Secretary of War may prescribe, the Under Secretary of War and the Assistant Secretary of War are authorized, respectively, to exercise and perform all functions, duties, and powers conferred upon the Secretary of War or the Acting Secretary of War by Article of War 50 1/2 as amended. 2.
Key Directives & Operative Actions
Subject to such regulations as the Secretary of War may prescribe, the Under Secretary of War and the Assistant Secretary of War are authorized, respectively, to exercise and perform all functions, duties, and powers conferred upon the Secretary of War or the Acting Secretary of War by Article of War 50 1/2 as amended. 2.
There are hereby transferred to the Under Secretary of War, the Assistant Secretary of War, an the Assistant Judge Advocate General in charge of military justice matters such functions, duties, and powers of the Secretary of War and the Judge Advocate General as may be necessary to effectuate the provisions of this order; but nothing contained in this order shall be deemed to limit or restrict the power and right on the part of the Secretary of War or the Judge Advocate General, in their discretion, to exercise or perform any of the functions, duties, or powers heretofore possessed by or vested in them. 4.
The functions, duties, and powers herein transferred or delegated may be exercised and performed by the officials to whom such transfers and delegations are made without the necessity of any signature, approval, ratification, or other act by higher authority, except to the extent required by such regulations as may be prescribed by the Secretary of War; and all officers, officials, and employees of the United States including disbursing, accounting, and auditing officers, shall give the same effect to any acts of those to whom transfers and delegations are made hereunder as if done by the person or persons in whom the functions, duties, and powers were vested prior to such transfers and delegations.
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 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."
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.
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
Operates within delegated statutory execution without modifying legislative appropriations or taxing powers.
Executive Scope & Faithfulness
Exercises standard supervisory executive authority to faithfully execute existing statutes.
Federalism & State Sovereignty
Creates friction with the Tenth Amendment by conditioning state grants, mandating local compliance, or preempting state police powers.
Due Process & Individual Rights
Focuses on internal governmental operations with no direct impairment of private rights or property.
Youngstown Jacksonian Tier
The order relies on inherent Article II executive discretion, civil service management, or foreign diplomacy where Congress has neither expressly approved nor prohibited action.
This order operates within Justice Jackson’s Zone of Twilight, resting upon concurrent presidential authority or congressional silence.
Scholarly & Legal Citations
Exec. Order No. 9363 (July 23, 1943), https://executiveordersarchive.org/orders/app-executive-order-9363-redistributing-certain-functions-the-secretary-war-and-the-judge.