By virtue of the authority vested in me by section 1124 (b) and (e) of title 10, United States Code, and section 301 of title 3, United States Code, and as President of the United States, it is ordered as follows: SECTION 1. Any suggestion, invention, or scientific achievement by a member of the armed forces that contributes to the efficiency, economy, or other improvement of operations of the Government of the United States through its adoption or use by an executive department or agency other than the executive department having jurisdiction over the armed force of the member concerned may be the basis for honorary recognition or a cash award by the Secretary of Transportation in the case of a member of the Coast Guard when it is not operating as a service in the Navy or by the Secretary of Defense in the case of any other member of the armed forces. SEC. 2. An executive department or agency that adopts or uses the suggestion, invention, or scientific achievement of a' member of the armed forces who is not under its jurisdiction may recommend to the Department of Defense or to the Department of Transportation, as appropriate, a cash award or honorary recognition of the member and shall justify its recommendation with appropriate documentation and explanation of how the suggestion, invention, or scientific achievement contributes to the efficiency, economy, or other improvement of the operations of the Government of the United States. Awards shall be made under regulations to be prescribed by the Secretary of Defense or the Secretary of Transportation, as appropriate. The regulations of the Department of Defense and Department of Transportation may include designations of officials to whom authority for receiving, evaluating, and making awards may be assigned. SEC. 3. No cash awards, hereunder for a single suggestion, invention, or scientific achievement may exceed $25,000 regardless of the number of agencies or departments which may adopt or use the suggestion, invention, or scientific achievement. SEC. 4. Funds to cover the costs of cash awards to members of the armed forces shall be transferred from the account of any executive department or agency which recommends the award to the appropriate account of the Department of Transportation or the Department of Defense, as the case may. be. When several executive departments or agencies benefit from the adoption or use of the suggestion, invention, or scientific achievement, the amount transferred from each such benefiting department or agency to the Department of Transportation or the Department of Defense to cover the proportionate share of the cost of the cash award shall be determined under procedures prescribed by the Civil Service Commission in accordance with the same guidelines and standards applying to awards to civilian employees. LYNDON B. JOHNSON The White House December 3, 1968
Executive Order 11438 Amended ⚖️✨ Zone 2: Zone of Twilight Constitutional Neutral (+0.02)
📜 Art. II §2: Commander-in-Chief Supervisory Authority
Executive Order 11438—Prescribing Procedures Governing Interdepartmental Cash Awards to the Members of the Armed Forces
Executive Brief • At a Glance
⏱️ 2 min read (465 words) •
● Amended
🎯 Primary Mandate
An executive department or agency that adopts or uses the suggestion, invention, or scientific achievement of a' member of the armed forces who is not under its jurisdiction may recommend to the Department of Defense or to the Department of Transportation, as appropriate, a cash award or honorary recognition of the member and shall justify its recommendation with appropriate documentation and explanation of how the suggestion, invention, or scientific achievement contributes to the efficiency, economy, or other improvement of the operations of the Government of the United States.
⚖️ 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 Executive Departments & Federal Civil Servants
Legal Status & Amendment History
AmendedActions on this order
- Amended by EO 13286
Source: Office of the Federal Register executive order disposition notes. Orders before 1994 show only actions recorded by later orders.
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 December 3, 1968, this order concerns Prescribing Procedures Governing Interdepartmental Cash Awards to the Members of the Armed Forces. Any suggestion, invention, or scientific achievement by a member of the armed forces that contributes to the efficiency, economy, or other improvement of operations of the Government of the United States through its adoption or use by an executive department or agency other than the executive department having jurisdiction over the armed force of the member concerned may be the basis for honorary recognition or a…
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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An executive department or agency that adopts or uses the suggestion, invention, or scientific achievement of a' member of the armed forces who is not under its jurisdiction may recommend to the Department of Defense or to the Department of Transportation, as appropriate, a cash award or honorary recognition of the member and shall justify its recommendation with appropriate documentation and explanation of how the suggestion, invention, or scientific achievement contributes to the efficiency, economy, or other improvement of the operations of the Government of the United States.
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Awards shall be made under regulations to be prescribed by the Secretary of Defense or the Secretary of Transportation, as appropriate.
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The regulations of the Department of Defense and Department of Transportation may include designations of officials to whom authority for receiving, evaluating, and making awards may be assigned.
▪
Funds to cover the costs of cash awards to members of the armed forces shall be transferred from the account of any executive department or agency which recommends the award to the appropriate account of the Department of Transportation or the Department of Defense, as the case may. be.
Constitutional & Societal Entities Impacted
🏛️ Armed Forces & Military Establishments
🏛️ Executive Departments & Federal Civil Servants
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The Framers' Constitutional Council
1787 PrismEvaluating this order against the constitutional debates of 1787 and the limits of Article II executive power.
⚖️✨ Zone 2 (Zone of Twilight)
§
"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
50 / 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
Moderate Friction
Executive Scope & Faithfulness
Directs internal executive branch machinery, agency workflows, and federal personnel.
Benchmark: Faithfully execute laws enacted by Congress vs. unilateral decree.
Dimension 3 • 10th Amendment
High Friction
Federalism & State Sovereignty
Creates friction with the Tenth Amendment by conditioning state grants, mandating local compliance, or preempting state police powers.
Benchmark: Police powers and un-delegated responsibilities reserved to the States.
Dimension 4 • 5th & 14th Amendments
Low Friction
Due Process & Individual Rights
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
Moderate Friction
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.
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%).
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
465
2,892 characters
Estimated Read Time
2 min
@ 200 words / min
Flesch-Kincaid
25.6
Post-Graduate Legal
Text size:
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Referenced By Later Executive Orders (1)
Subsequent presidents who cited, amended, continued, or revoked this directive in later orders.
Related Executive Orders
Other executive actions signed by Lyndon B. Johnson around this period.
EO 11437 Dec 2, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11437—Suspending the Provisions of Section 5751(b) of Title 10 of the United States Code, Relating to Service-in-Grade Requirements for Promotion of Officers of the Navy and Marine Corps
📜 Art. II §2: Commander-in-Chief Supervisory Authority
I hereby suspend the provisions of section 5751(b) of title 10 of the United. States Code. Executive Order No. 11232 of July 8, 1965, Executive Order No. 11352 of May 22, 1967, and Executive Order No. 11361 of July 6, 1967, are hereby revoked.
Lyndon B. Johnson Grade 7 • 1m
EO 11436 Dec 2, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11436—Suspending the Provisions of Section 6372 of Title 10 of the United States Code, Which Relate to the Retirement or Retention on the Active List of Certain Rear Admirals in the Navy
📜 Art. II §2: Commander-in-Chief Supervisory Authority
I hereby suspend the provisions of section 6372 of title 10 of the United States Code.
Lyndon B. Johnson Grade 8 • 1m
EO 11439 Dec 7, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11439—Revoking Executive Order No. 11372, Designating the Lake Ontario Claims Tribunal as a Public International Organization Entitled to Enjoy Certain Privileges, Exemptions, and Immunities
📜 Art. II §1: Executive Discretion & Internal Operations
I hereby revoke Executive Order No. 11372 of September 18, 1967, designating the Lake Ontario Claims Tribunal as a public international organization entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act.
Lyndon B. Johnson College Level • 1m
EO 11440 Dec 11, 1968
⚖️✨ Zone 2 (Zone of Twilight) Constitutional Neutral
Executive Order 11440—Providing for the Supplemental Use of Exhibits and Displays Created in Furtherance of Authorized Programs of Executive Departments and Agencies
📜 5th Amend: Regulatory Execution with Due Process
The heads of all executive departments and agencies are directed (a) when initiating plans for the preparation, production, or other creation of exhibits and displays in furtherance of their program missions, to confer with the Administrator of General Services, or his…
Lyndon B. Johnson Post-Graduate Legal • 3m
EO 11435 Nov 21, 1968
🏛️✅ Zone 1 (Maximum Authority) Constitutional Neutral
Executive Order 11435—Designating the Secretary of the Interior to Accept on Behalf of the United States Retrocession by any State of Certain Criminal and Civil Jurisdiction Over Indian Country
📜 10th Amend: Intergovernmental Federalism Cooperation
The Secretary of the Interior is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President or of any other officer of the United States, any and all authority conferred upon the United States by section 403(a) of the Act…
Lyndon B. Johnson Post-Graduate Legal • 1m
EO 11441 Dec 23, 1968
🏛️✅ Zone 1 (Maximum Authority) Constitutional Neutral
Executive Order 11441—Amending Executive Order No. 11248, Placing Certain Positions in Levels IV and V of the Federal Executive Salary Schedule
📜 Art. I §8: Delegated Tariff & Commerce Execution
Executive Order No. 11248 of October 10, 1965, as amended, is further amended as follows: 1. Section 1 of that Order, placing certain positions in level IV of the Federal Executive Salary Schedule, is amended by adding thereto the following: (10) Director, United States Secret…
Lyndon B. Johnson Post-Graduate Legal • 1m
📜
Scholarly & Legal Citations
Exec. Order No. 11,438 (Dec. 3, 1968), https://executiveordersarchive.org/orders/app-executive-order-11438-prescribing-procedures-governing-interdepartmental-cash-awards-the.
