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Executive Order 9406 ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02) 📜 Art. II §2: Commander-in-Chief Supervisory Authority

Executive Order 9406—Transfer of Functions With Respect to Necessity Certificates From the Secretary of War and the Secretary of the Navy to the Chairman of the War Production Board

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Friday, December 17, 1943
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4 min read (737 words)

Executive Brief • At a Glance

⏱️ 4 min read (737 words) • ● In Effect
🎯 Primary Mandate

Subject to the provisions of section 2 of this order, the functions, powers, and duties of the Secretary of War and the Secretary of the Navy with respect to the certification, pursuant to section 124 (f) of the Internal Revenue Code, of the construction, reconstruction, erection, installation or acquisition of facilities necessary in the Interest of national defense during the emergency period, and with respect to prescribing from time to time with the approval of the President regulations governing such certification, are transferred to the Chairman of the War Production Board. 2.

⚖️ Constitutional Footing
⚖️✨ Zone 2: Zone of Twilight
Concurrent Authority / Congressional Silence
📜 Art. II §2: Commander-in-Chief Supervisory Authority
🏛️ Scope & Affected Sectors
Armed Forces & Military Establishments Merchants, Importers & Commercial Enterprises Executive Departments & Federal Civil Servants Financial Institutions & Monetary Authorities

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 December 17, 1943, this order concerns Transfer of Functions With Respect to Necessity Certificates From the Secretary of War and the Secretary of the Navy to the Chairman of the War Production Board. Subject to the provisions of section 2 of this order, the functions, powers, and duties of the Secretary of War and the Secretary of the Navy with respect to the certification, pursuant to section 124 (f) of the Internal Revenue Code, of the construction, reconstruction, erection, installation or acquisition of facilities necessary in the Interest of national defense during the emergency period, and with respect to…

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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Subject to the provisions of section 2 of this order, the functions, powers, and duties of the Secretary of War and the Secretary of the Navy with respect to the certification, pursuant to section 124 (f) of the Internal Revenue Code, of the construction, reconstruction, erection, installation or acquisition of facilities necessary in the Interest of national defense during the emergency period, and with respect to prescribing from time to time with the approval of the President regulations governing such certification, are transferred to the Chairman of the War Production Board. 2.

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The Secretary of War and the Secretary of the Navy shall act upon (1) all applications for Necessity Certificates filed before October 5, 1943, and (2) applications for Necessity Certificates filed between and including October 5, 1943 and December 17, 1943 describing facilities the beginning of the construction, reconstruction, erection, installation or the date of acquisition of which was prior to October 5, 1943.

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When the Secretary of War and the Secretary of the Navy have made final determination upon all applications specified in this subsection, their functions, powers and duties to issue Necessity Certificates shall cease.

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The Chairman of the War Production Board shall act upon (1) applications for Necessity Certificates filed after December 17, 1943 describing facilities the beginning of the construction, reconstruction, erection, installation or the date of acquisition of which was prior to October 5, 1943.

Constitutional & Societal Entities Impacted

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

"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
38 / 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

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
737
4,716 characters
Estimated Read Time
4 min
@ 200 words / min
Flesch-Kincaid
29.8
Post-Graduate Legal
Language Tone Score
+0.02
Constitutional Neutral
How is this scored?
Text size:

Official Archival Text

View Source Document

By virtue of the authority vested in me by Title I of the First War Powers Act, 1941, and as President of the United States, and in order to enable the Chairman of the War Production Board more effectively to carry out his responsibilities with respect to the regulation of production and supply of materials, articles, and equipment, and services required for the national defense, it is hereby ordered as follows: 1. Subject to the provisions of section 2 of this order, the functions, powers, and duties of the Secretary of War and the Secretary of the Navy with respect to the certification, pursuant to section 124 (f) of the Internal Revenue Code, of the construction, reconstruction, erection, installation or acquisition of facilities necessary in the Interest of national defense during the emergency period, and with respect to prescribing from time to time with the approval of the President regulations governing such certification, are transferred to the Chairman of the War Production Board. 2. (a) The Secretary of War and the Secretary of the Navy shall act upon (1) all applications for Necessity Certificates filed before October 5, 1943, and (2) applications for Necessity Certificates filed between and including October 5, 1943 and December 17, 1943 describing facilities the beginning of the construction, reconstruction, erection, installation or the date of acquisition of which was prior to October 5, 1943. When the Secretary of War and the Secretary of the Navy have made final determination upon all applications specified in this subsection, their functions, powers and duties to issue Necessity Certificates shall cease. (b) The Chairman of the War Production Board shall act upon (1) applications for Necessity Certificates filed after December 17, 1943 describing facilities the beginning of the construction, reconstruction, erection, installation or the date of acquisition of which was prior to October 5, 1943. Such applications for Necessity Certificates filed after the effective date of this order shall be filed with the War Production Board. (2) applications for Necessity Certificates filed on and after October 5, 1943 and pending December 17, 1943 with the Secretary of War and the Secretary of the Navy which describe facilities the construction, reconstruction, erection or installation of which has not begun or which have not been acquired, and (3) applications for Necessity Certificates filed after December 17, 1943 which describe facilities the construction, reconstruction, erection, or installation of which has not begun or which have not been acquired. 3. (a) The regulations of the Secretary of War and the Secretary of the Navy in effect prior to October 5, 1943 shall govern the issuance of Necessity Certificates for all applications for Necessity Certificates describing facilities the beginning of the construction, reconstruction, erection, installation or the date of acquisition of which was prior to October 5, 1943. (b) In acting upon applications for Necessity Certificates filed on and after October 5, 1943 describing facilities the construction, reconstruction, erection or installation of which was not begun or which were not acquired prior to October 5, 1943, Necessity Certificates shall not be issued unless the Chairman of the War Production Board has determined prior to the beginning of the construction, reconstruction, erection, installation, or the date of acquisition of the facilities (1) that the facilities to be constructed or acquired are clearly necessary for the war effort, and (2) that it is to the advantage of the Government that such additional facilities be privately financed. 4. In the exercise of the functions, powers and duties transferred by this order, the Chairman of the War Production Board may consult the War Department and the Navy Department with regard to facilities required primarily for military or naval use, and other departments and agencies with regard to facilities required primarily for uses within their respective Jurisdictions. 5. Such civilian personnel, property, and records used primarily in the administration of the functions, powers and duties transferred by this order, and so much of the unexpended balance of appropriations, allocations and funds available to the War Department and the Navy Department for the said purposes as the Director of the Bureau of the Budget shall determine, shall be transferred to the Chairman of the War Production Board on such date or dates as the Director of the Bureau of the Budget shall determine, for use in connection with the exercise of the functions, powers and duties so transferred. FRANKLIN D ROOSEVELT The White House, December 17, 1943.

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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. 9406 (Dec. 17, 1943), https://executiveordersarchive.org/orders/app-executive-order-9406-transfer-functions-with-respect-necessity-certificates-from-the.