By virtue of the authority vested in me by section 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows: SECTION 1. The Secretary of Defense, and, as designated by the said Secretary for this purpose, any of the Secretaries, Under Secretaries, and Assistant Secretaries of the military departments, are hereby designated and empowered to perform the following-described functions of the President without the approval, ratification, or other action of the President: (1) The authority vested in the President by section 3539(a) of title 10, United States Code, to detail not more than five commissioned officers of the Army Medical Service for duty with the Service to the Armed Forces Division of the American National Red Cross. (2) The authority vested in the President by sections 3293 and 8293 of title 10, United States Code, to prescribe an examination concerning the moral, mental, and physical qualifications of chaplains. (3) The authority vested in the President by sections 3313 and 8313 of title 10, United States Code, to suspend, in time of war or emergency, any provision of law relative to the promotion or mandatory retirement or separation of Regular Army and Regular Air Force commissioned officers. (4) The authority vested in the President by sections 565, 599, 3450, and 8450 of title 10, United States Code, to suspend, in time of war or emergency, any provision of law relative to promotion and mandatory retirement or separation of warrant officers of the armed forces. (5) The authority vested in the President by sections 4337 and 9337 of title 10, United States Code, to appoint the chaplains at the United States Military and Air Force Academies. (6) The authority vested in the President by sections 4302(a) and 9302(a) of title 10, United States Code, to approve regulations concerning instruction of enlisted members of the Army and Air Force. (7) The authority vested in the President by sections 3611 and 8611 of title 10, United States Code, to prescribe the uniform of the Army and the Air Force. (8) The authority vested in the President by sections 5139 and 5149 of title 10, United States Code, relating to the retirement of the Chief of the Medical Service Corps, the Deputy Judge Advocate General, and the Assistant Judge Advocate General, of the Navy. (9) The authority vested in the President by section 6394(e) of title 10, United States Code, to approve or disapprove, in whole or in part, recommendations of boards convened to consider and recommend flag and general officers of the Navy and Marine Corps for retirement. (10) The authority vested in the President by section 2102(a) of title 10, United States Code, to prescribe regulations governing the establishment and maintenance of senior reserve officers' Training Corps units at civilian educational institutions. (11) The authority vested in the President by section 123 of title 10, and section 111 of title 32, United States Code, to suspend in time of war or national emergency those provisions cited therein relating to promotion of reserve officers. (12) The authority vested in the President by section 6398 of title 10, United States Code, to retire certain women officers of the Navy and the Marine Corps. (13) The authority vested in the President by section 6223 (b) of title 10, United States Code, relating to members of the Marine Corps Band. (14) The authority vested in the President by section 425 of title 37, United States Code, to approve concert tours of the Navy Band and the Marine Corps Band. SEC. 2. All actions heretofore taken by or for the President with respect to the matters affected by this order and in force and effect at the time of the issuance of this order, including any regulations prescribed or approved by the President with respect to such matters, shall, except as they may be inconsistent with the provisions of this order, remain in force and effect until amended, modified, or revoked pursuant to the authority conferred by this order. LYNDON B. JOHNSON The White House January 22, 1968
Executive Order 11390 ⚖️⚠️ Zone 3: Lowest Ebb Constitutional Friction / Overreach (-0.19)
📜 Art. II §2: Commander-in-Chief / War Prerogative Tension
Executive Order 11390—Delegation of Certain Functions of the President to the Secretary of Defense
Executive Brief • At a Glance
⏱️ 3 min read (681 words) •
● In Effect
🎯 Primary Mandate
The Secretary of Defense, and, as designated by the said Secretary for this purpose, any of the Secretaries, Under Secretaries, and Assistant Secretaries of the military departments, are hereby designated and empowered to perform the following-described functions of the President without the approval, ratification, or other action of the President: (1) The authority vested in the President by section 3539(a) of title 10, United States Code, to detail not more than five commissioned officers of the Army Medical Service for duty with the Service to the Armed Forces Division of the American National Red Cross.
⚖️ Constitutional Footing
⚖️⚠️ Zone 3: Lowest Ebb
Incompatible with Expressed Will of Congress or High Friction
📜 Art. II §2: Commander-in-Chief / War Prerogative Tension
🏛️ Scope & Affected Sectors
Armed Forces & Military Establishments Executive Departments & Federal Civil Servants Public Health & Medical Institutions
Plain-English Translation & Framers' Constitutional Analysis
Early Statesman synthesis distilling legal jargon into practical meaning, statutory anchors, and structural constitutional impacts.
Signed by President Lyndon B. Johnson on January 22, 1968, this order concerns Delegation of Certain Functions of the President to the Secretary of Defense. The Secretary of Defense, and, as designated by the said Secretary for this purpose, any of the Secretaries, Under Secretaries, and Assistant Secretaries of the military departments, are hereby designated and empowered to perform the following-described functions of the President without the approval, ratification, or other action of the President: (1) The authority vested in the President by section 3539(a) of…
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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The Secretary of Defense, and, as designated by the said Secretary for this purpose, any of the Secretaries, Under Secretaries, and Assistant Secretaries of the military departments, are hereby designated and empowered to perform the following-described functions of the President without the approval, ratification, or other action of the President: (1) The authority vested in the President by section 3539(a) of title 10, United States Code, to detail not more than five commissioned officers of the Army Medical Service for duty with the Service to the Armed Forces Division of the American National Red Cross.
▪
The authority vested in the President by sections 3293 and 8293 of title 10, United States Code, to prescribe an examination concerning the moral, mental, and physical qualifications of chaplains.
▪
All actions heretofore taken by or for the President with respect to the matters affected by this order and in force and effect at the time of the issuance of this order, including any regulations prescribed or approved by the President with respect to such matters, shall, except as they may be inconsistent with the provisions of this order, remain in force and effect until amended, modified, or revoked pursuant to the authority conferred by this order.
Constitutional & Societal Entities Impacted
🏛️ Armed Forces & Military Establishments
🏛️ Executive Departments & Federal Civil Servants
🏛️ Public Health & Medical Institutions
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.
⚖️⚠️ Zone 3 (Lowest Ebb)
§
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."
— Justice Robert H. Jackson, Youngstown Sheet & Tube Co. v. Sawyer (1952) Incompatible with Expressed Will of Congress or High Friction
JM
James Madison
Separation of Powers & Legislative Primacy
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny." — Federalist No. 47 (1788)
Madison would express grave alarm over this order. By asserting independent authority in tension with legislative limits or the Bill of Rights, the Executive risks collapsing the separation of powers into unilateral rule. Under the Madisonian model, no emergency justifies the Executive substituting its decree for a deliberative Act of Congress.
Madisonian Stance: Strict Dissent (Overreach)
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 purse and the sword ought never to be in the same hands... nor the liberties of the citizen placed at the pleasure of a single magistrate." — Virginia Ratifying Convention (1788)
George Mason and the Anti-Federalists would sound a fierce warning. They feared that Article II would inevitably evolve into an elective monarchy. When an executive order impacts private rights, property, or civil liberties without individualized judicial process, Mason would see their darkest predictions verified.
Anti-Federalist Stance: Vehement Objection
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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.
⚠️ Elevated Constitutional Friction
70 / 100 friction index
Dimension 1 • Art. I, §1 & §8
Moderate Friction
Legislative Encroachment & Purse
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
High Friction
Executive Scope & Faithfulness
Invokes broad unilateral or emergency executive authorities that test the constitutional boundary of the Take Care Clause.
Benchmark: Faithfully execute laws enacted by Congress vs. unilateral decree.
Dimension 3 • 10th Amendment
Moderate Friction
Federalism & State Sovereignty
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
High Friction
Due Process & Individual Rights
Scrutinized under the Bill of Rights for potential impact on private contracts, property rights, or procedural due process.
Benchmark: Protection of private property, contracts, liberty, and procedural justice.
Dimension 5 • Separation of Powers
High Friction
Youngstown Jacksonian Tier
The order asserts independent Article II prerogative against statutory constraints, reallocates funds without explicit appropriation, or stretches executive power into realms constitutionally reserved to the legislature or judiciary.
Benchmark: Incompatible with Expressed Will of Congress or High Friction
⚖️
Audit Synthesis
This directive engages significant constitutional friction across statutory authorization, legislative prerogatives, or individual liberties.
Weighted composite: Art. I (25%), Art. II (25%), Federalism (15%), Due Process (15%), Youngstown (20%).
ℹ️
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
681
4,091 characters
Estimated Read Time
3 min
@ 200 words / min
Flesch-Kincaid
20.1
Post-Graduate Legal
Text size:
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Referenced By Later Executive Orders (3)
Subsequent presidents who cited, amended, continued, or revoked this directive in later orders.
Amends Executive Order 12608—Elimination of Unnecessary Executive Orders and Technical Amendments to Others
Ronald Reagan • 1987-09-09
Ronald Reagan • 1982-12-09
Related Executive Orders
Other executive actions signed by Lyndon B. Johnson around this period.
EO 11389 Jan 22, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11389—Placing an Additional Position in Level IV of the Federal Executive Salary Schedule
📜 Art. II §1: Executive Discretion & Internal Operations
Of Executive Order No. 11248 of October 10, 1965, as amended, is further amended by adding thereto the following: (7) Director, Office of Foreign Direct Investments, Department of Commerce.
Lyndon B. Johnson College Level • 1m
EO 11391 Jan 24, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11391—Amending the Selective Service Regulations
📜 Art. II §2: Commander-in-Chief Supervisory Authority
I hereby prescribe the following amendments of the Selective Service Regulations prescribed by Executive Orders No. 10344 of April 17, 1952, No. 10594 of January 31, 1955, and No. 10837 of September 14, 1959, and constituting portions of Part 1655—Registration of United States…
Lyndon B. Johnson Post-Graduate Legal • 2m
EO 11393 Jan 25, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11393—Amending Executive Order No. 11248, Placing Certain Positions in Levels IV and V of the Federal Executive Salary Schedule
📜 Art. II §2: Commander-in-Chief Supervisory Authority
Section 2 of Executive Order No. 11248 of October 10, 1965, as amended by Executive Order No. 11268 of January 20, 1966, is further amended by substituting for item (6) thereunder the following: "(6) Deputy Director of Defense Research and Engineering, Department of Defense."
Lyndon B. Johnson High School • 1m
EO 11392 Jan 25, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11392—Ordering Certain Units of the Ready Reserve of the Naval Reserve, Air Force Reserve and Air National Guard of the United States to Active Duty
📜 Art. II §2: Commander-in-Chief Supervisory Authority
The following units of the Ready Reserve of the Naval Reserve, the Air Force Reserve and the Air National Guard of the United States to active duty for a period of not to exceed 24 months: ( 1) 113th Tactical Fighter Wing, Air National Guard of the United States.
Lyndon B. Johnson Grade 8 • 2m
EO 11388 Jan 15, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11388—Designation of Officers of the Department of Commerce to Act as Secretary of Commerce
📜 Art. II §1: Executive Discretion & Internal Operations
During any period when by reason of absence, disability, or vacancy in office, neither the Secretary of Commerce nor the Under Secretary of Commerce is available to exercise the powers or perform the duties of the office of Secretary, an Assistant Secretary of Commerce or the…
Lyndon B. Johnson College Level • 1m
EO 11394 Jan 30, 1968
🏛️✅ Zone 1 (Maximum Authority) Fidelity (+0.29)
Executive Order 11394—Establishing the President's Commission for the Observance of Human Rights Year 1968
📜 5th Amend: Regulatory Execution with Due Process
Establishment of Commission. (a) There is hereby established the President's Commission for the Observance of Human Rights Year 1968 (hereinafter referred to as the "Commission").
Lyndon B. Johnson College Level • 4m
📜
Scholarly & Legal Citations
Exec. Order No. 11,390 (Jan. 22, 1968), https://executiveordersarchive.org/orders/app-executive-order-11390-delegation-certain-functions-the-president-the-secretary-defense.
