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.
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
Executive Brief • At a Glance
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.
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…
Key Directives & Operative Actions
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.
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.
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
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
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
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.
Referenced By Later Executive Orders (1)
Subsequent presidents who cited, amended, continued, or revoked this directive in later orders.
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.