The fictional President Matthew Ellis on Agents of SHIELD (plus Iron Man 3 and his voice on Captain American the Winter Soldier) issued an Executive Order creating the Advanced Threat Containment Unit (ATCU). The Government responding to an alien threat, that is both fatal to human beings and mutating others with alien DNA, is the very purpose of government to protect its citizens.
There is one very big problem: 1) President Ellis should be dead politically; and 2) Ellis can issue Executive Orders, but Congress has to fund the project.
A Politically Damaged President
No one thinks of courage when they hear the names James Buchanan or Herbert Hoover. Buchanan was asleep at the helm as the fires of Civil War started to burn and Hoover mishandled the response to the Great Depression.
President Ellis would be considered far worse. On his watch, President Ellis was 1) Kidnapped; 2) the Vice President attempted a coup d’etat; 3) SHIELD was compromised by HYDRA in what could have been mass murder of millions; and 4) an Eastern European city was dropped out of the sky by a killer robot made by American scientists, one of whom had been one of the largest weapons manufacturers since World War 2.
Those are political hits that no President could survive. The Ellis Administration would look rotten from his treasonous Vice President and SHIELD being overrun by Neo-Nazis who sought to commit genocide with American-made flying aircraft carriers. Ellis would be mocked domestically as clueless and demonized internationally for threats created by Americans. It is highly unlikely Ellis could run for re-election. It would be politically wise to let his political party nominate another in hopes of retaining the White House.
Lawful Executive Orders
Presidents have issued Executive Orders since the founding of the Republic. However, issuing Executive Orders is not supposed to be an end run around Congress in creating a government agency.
An “Executive Order” is issued based upon Constitutional or statutory authority. Executive Orders are given the same force and effect of law. As Courts have explained:
The use of executive orders may be employed by the President in carrying out his constitutional obligation to see that the laws are faithfully executed and to delegate certain of his duties to other executive branch officials, but an executive order cannot impose legal requirements on the executive branch that are inconsistent with the express will of Congress.
Utah Ass’n of Counties v. Bush (D.Utah 2004) 316 F.Supp.2d 1172, 1184.
Could the President create a new agency to fight aliens?
President Ellis could argue that the ATCU Executive Order was based on the President’s authority under Article 2, Section 2 of the Constitution and likely a combination of Defense Authorization bills for the military and NASA. However, the smarter course of action would be to seek Congressional approval and funding of the agency specifically tasked with planetary defense from aliens and advanced threats. While it is shooting for the Moon, Ellis could be trying to look decisive in the face of alien genocide from the ocean being contaminated by a eugenic weapon. This plan might be the only chance for re-election.
It is not clear what legal authority the ATCU is claiming to arrest Inhumans. While people running around destroying property would justify arresting them, things could get Constitutionally ugly is President Ellis ordered the internment of citizens based on race. If the Government was willing to go that far, what other Constitutionally questionable laws could we see before Captain America Civil War?
Let’s just say it is not a good list legally.
General Pardons for SHIELD Agents?
Director Coulson’s illegal SHIELD organization and ATCU appear to have similar goals. They are facing the same threats. The big difference is how Inhumans are being treated by the ATCU, however, there is a good argument both are falsely imprisoning US Citizens. That being said, both view Lash as the common enemy who is killing people.
It is highly plausible that this commonality of interests for national defense could result in general pardons for the rogue SHIELD Agents. This would also be a great way to make SHIELD legitimate once again, so we are not cheering for characters who should be charged with 1) Terrorism (18 USCS § 2331(5)); 2) Treason (18 USCS § 2381); 3) Rebellion (18 USCS § 2383); 4) Enlistment to Serve Against the United States (18 USCS § 2390); 5) Obstruction of Justice (18 USCS § 2390); and 6) RICO (18 USCS § 1962). The US Government did not fall in Winter Soldier, so it is time the good guys stop being a rogue organization.