Our Supergirl Radio Legal Consultants wrote in to answer a question about Brainy’s promotion as Director of the DEO.
From Leslie:
Regarding Brainy, an alien, being the director of the DEO, it appears that the DEO is no longer a governmental organization. The DEO’s operations have been privatized. The DEO is a wholly-owned subsidiary of LuthorCorp, a private business organization or corporation. The head of the DEO is a private citizen – Lex Luthor, who is the owner and President and/or Chief Executive Officer of LuthorCorp. I do not like this turn of events because the DEO has no legitimate arrest powers and DEO agents can violate a prisoner’s constitutional rights with impunity because DEO agents are not state or federal employees. The Bill of Rights and other constitutional guarantees are only applicable when state or federal government action is involved.
If the DEO were a government-owned corporation, also known as a state-owned enterprise, created to undertake commercial activities such as for-profit prisons, the head of the DEO would still be a government official. Since the head of the DEO is Lex Luthor, as opposed to the U.S. President or the Secretary of Defense, the DEO is now a private business organization. As a private business organization, it is Lex’s prerogative to appoint whoever he wants — either a human or an alien.
Regarding the rights of aliens, apparently the Alien Amnesty Act was reinstated. In the season four finale, “A Quest for Peace,” Colonel Haley, the then acting Director of Alien Affairs, stated that President Plastino, who was the Vice President under President Baker, reinstated the Alien Amnesty Act until the Act could be passed by Congress once Baker was arrested.
I once again note that President Olivia Marsden, an alien herself from the planet Durla, issued a Presidential Executive Order and created the Alien Amnesty Act. Any president, after Marsden stepped down, could rescind this Presidential Executive Order, which clearly is not a legislative measure, with one stroke of a president’s pen without a Congressional vote. But for the sake of their storyline, the Supergirl writers needed to build up the drama over a couple of episodes from Season 4×14 “Stand and Deliver” episode and Season 4×17 “All About Eve” episode with Ben Lockwood suggesting that Congress consider and then vote on a “repeal” of the Act. This drama was needed so that Lex could credibly have Red Daughter impersonate Supergirl and attack the White House as retaliation for the repeal of the Alien Amnesty Act.
Given the reset on the timeline on Earth-Prime, who knows exactly whether there was a backlash against aliens. We do know from LuthorCorp’s commercial with Supergirl at the beginning of “the Bottle Episode,” Season 5×10 episode, that the Daxamites did attack Earth. We also know from “It’s a Super Life” Season 5×13 episode that Ben Lockwood and his followers existed on Earth-Prime and were engaging in shenanigans and very suspicious of Supergirl where her friends and family were assassinated. In the final analysis, some executive order or congressional legislation would have to be signed to afford aliens some basic rights.
From Susan:
I’m not sure it matters if the Alien Amnesty Act was wiped out or not. One doesn’t have to be a citizen to work for the government. Or to be in the military. Not being a citizen could affect the ability to get a security clearance, which may impact the job one can do, but the DEO is so lax about all sorts of other things I can’t imagine that would really matter. On the other hand, if the DEO is now a private employer, it is illegal to employ someone who doesn’t have the right to work in the U.S. We would need to know the circumstances of Brainy’s status – does he have a “green card”?
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