President Donald Trump over the weekend signed a proclamation invoking the Alien Enemies Act of 1798 to deport migrants that are believed to be associated with the Venezuelan gang Tren de Aragua – an order that a federal judge temporarily blocked. Immigration attorney Brad Bernstein joins "Forbes Newsroom" to discuss.
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NewsTranscript
00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes. Joining me now
00:07is immigration attorney Brad Bernstein. Brad, thank you so much for joining me.
00:11Thanks for having me.
00:13Of course, I'm excited for your expertise here because it was a big weekend. As we knew
00:18from the campaign trail, President Trump said if he was elected for a second term, immigration
00:23was going to be one of his top priorities. He promised, he vowed he was going to enact
00:28the Alien Enemies Act. He signed a proclamation this weekend invoking the act. We know it's
00:34an 18th century rule, and it's to deport migrants that the Trump administration has tied to
00:40a Venezuelan gang. A federal judge blocked the action on Saturday, but the press secretary
00:45confirmed that, quote, this weekend at the president's direction, the Department of Homeland
00:50Security successfully arrested nearly 300 Trandayaragua terrorists, saving countless
00:55of American lives. From the standpoint of an immigration attorney, what sticks out to
01:00you? Can you first break down what exactly the Alien Enemies Act is?
01:05Well, it's a law going back to 1798, before there was even immigration law existed, before
01:12there was a Supreme Court that even came down with any rulings on immigration. And it was
01:19based on because back then there was no CIA, there was no intelligence, there was no FBI,
01:25there was no even federal criminal law. So George Washington and the founding fathers,
01:31they had to decide, well, if we're at war against somebody, we don't know if, you know,
01:36in the War of 1812, it was used, for example, we don't know in the War of 1812, if this
01:41person from Great Britain is on our side on somebody else's side, there's no internet,
01:46there's no background checks on anybody. So we want the ability to deport them very
01:51quickly as a wartime authority. And it was used in the War of 1812, it was used in World
01:57War One. And the last time it was used was by President Truman in World War Two. Most
02:03famously, the Japanese detention camps as well, as he used it all the way through 1951
02:12to deport people without any hearings. And there was a Supreme Court decision that back
02:20back in 1951, let key and what it said was that President Truman had the right to declare
02:29a war and to say when the war was ended, it's a political decision. It's not for the courts
02:34to get into that thicket to determine when war starts when war ends. And as a result,
02:41this law, Alien Enemies Act was a valid law, and he can use it to deport people when he
02:46wants to. So it's a law from the 18th century. It's only been invoked a few times in this
02:52nation. I want to read some language from the proclamation from President Trump over
02:56the weekend and get your response to it. He said this quote, China Iraq, what is a designated
03:02foreign terrorist organization with 1000s of members, many of whom have unlawfully infiltrated
03:07the United States and are conducting irregular warfare and undertaking hostile actions against
03:12the United States. I'm stuck on the term irregular warfare as an attorney. What do you think
03:19that means? Well, under the Alien Enemies Act, you can invoke it if there is we're at war.
03:26And that would be a declaration by Congress, presumably because the president can't declare
03:32be an invasion, or it could be a predatory invasion. And what really the difference between
03:38an invasion and a predatory invasion, to the best of anybody's knowledge, would be that
03:44invasion would be an army and a predatory invasion. You know, if you're thinking back
03:48to 1798, what would be a predatory invasion, because this is when it was written, would
03:52be more like a militia coming into the United States to attack, you know, the issue that
03:58immigration lawyers and constitutional authorities have on all of this as well. They've been
04:04here for a very long time already. When did this invasion actually start? Why is this
04:08invasion starting now? And, you know, it's been going on for decades already. And number
04:13two, is are you can you call a group that is not a government invading the United States
04:23of America? It's like a de facto group. It's not even it's not even unless you're going
04:28to say that this this gang or drug cartel is actually being run by a legitimate government.
04:37You weren't surprised by this because you actually posted a tick tock about this last
04:41week saying, here's exactly what this law is. President Trump could invoke this. As
04:48your expertise as an immigration attorney, do you think the Trump administration has
04:52firm legal ground to invoke this?
04:56Well, it's really going to come down to the judges, because once once this is all invoked,
05:00there's three possibilities. Congress can declare a war and then it's a non-issue anymore.
05:06They could say, you know, we're at war against these Venezuelan gangs. We're at war against
05:09this Mexican cartel. And then it's a non-issue anymore. Congress could also change the law
05:15and they could say, you know what, the Alien Enemies Act, it pertains to people who are
05:20here who are either documented or undocumented, who are non-citizens, who are part of this
05:25gang. Nobody believes that Congress is going to get involved in this. So it really comes
05:30down to what does what does a judge say? Does does the judge say that President Trump has
05:38a right to say when there is a war and who we're at war with? There is a separation of
05:44powers. Congress is supposed to be declaring wars and presidents are supposed to be the
05:49head of the military. But we'll see what happens with the judges, because there are
05:54case law that says the judges don't want to get involved in political questions. And one
05:59of the political questions that was back in World War Two that I mentioned before in that
06:04Supreme Court decision was that the Supreme Court said we're not going to get involved
06:08into in determining when a war is ending. Now, that's a different question than determining
06:15are we even at war? Because during World War Two, it was a declared war by Congress
06:22and and the Supreme Court decision said, well, we're not going to decide when this war is
06:26over. That's a political decision. That's different than a constitutional issue of separation
06:32of powers. Congress is supposed to declare a war and it's supposed to declare a war against
06:37who we are at war with. And here we have a situation where Congress has been silent and
06:43it's been the president who is not only declaring war, declaring who we're at war with.
06:48And it's against not even a nation. It's not even against a perhaps even a group that's
06:55controlled by a by a nation. It's a de facto organization, non-governmental organization
07:01that he's declaring we're at war with. The other big issue becomes once the president
07:08has this authority, is given this authority, the question really becomes is who's now going
07:13to determine is this person a member of this group? Is this person not a member of this
07:18group? And the bigger issue even becomes, you know, Americans say, yeah, we'll get rid
07:22of the drug cartels, get rid of the gangs who needs them. But what happens to all the
07:26other people who in immigration and customs enforcement officer without the review of
07:32a judge, without any judicial process says, hey, you're part of a gang, you're getting
07:37deported when the person may have nothing to do with the gang just because of what they
07:41look like, just because of who may be the area they're living in or their last name
07:46or even where they were born.
07:48I think that brings up a really good point. Do you think that this proclamation really
07:53is a slippery slope here? Because how do we know that all of those migrants who were deported
07:59were part of or affiliated with the trend Iraq gang? And do you think in the future?
08:04I mean, what it what is the classification? What is the characterization here to say someone's
08:08a gang member or not?
08:11Well, there is no there is none. It's going to be on it's going to be on on a case by
08:15case basis where somebody just says you're part of a gang, you're getting deported. And
08:20that really goes to the fundamental issue of the U.S. Constitution and U.S. law, where
08:27everybody has their individual liberties, and everybody has a right to a hearing before
08:32court as an individual person to determine whether or not they're part of a gang, whether
08:38or not they're part of a drug cartel, whether or not they are doing something against the
08:43US government. And the biggest issue here is that is eliminated those individual rights
08:49where you have a right to say I have nothing to do with this. And instead, you have individual
08:55ICE officers, it's not Donald Trump, Donald Trump is not walking around the cities arresting
08:59people. These are individual Immigration and Customs Enforcement officers who have been
09:05trained to some level, who knows how much who are making life altering decisions about
09:13individual people if this war were to go through, and allowing them to be deported to very
09:20dangerous third world countries, jails, El Salvador, where I've never been in El Salvador
09:26jail, but from what I read about it, it's not pleasant at all, or even worse, or even
09:32worse, getting deported back to Venezuela, where most likely, all of these individuals
09:39will be persecuted by the Venezuelan government. So these are life altering decisions about
09:47those fundamental rights to to life and liberty that are being determined by an Immigration
09:53and Customs Enforcement officer with very little training in this, without any oversight
09:59by a judge to have an individual hearing to determine if this person is even part of this
10:06gang.
10:07There were questions as you noted about President Trump's potential overreach here and a federal
10:13judge pretty much immediately on Friday or on Saturday rather blocked this temporarily
10:17for 14 days. And as we know, Secretary of State as well as the Press Secretary said
10:22that some people were already deported. And Press Secretary Caroline Leavitt reportedly
10:26said this in a statement quote, the administration did not refuse to comply with the court order
10:31and that quote, the order which had no lawful basis was issued after terrorist TDA aliens
10:37had already been removed from US territory. What do you make of that situation? The federal
10:42judge blocked it people will still were still deported. But the Trump administration saying
10:46essentially, we didn't refuse to comply. But that's not even legal anyway.
10:51Yeah, well, they're just making up their own rules as they go along. They're saying, we're
10:56at war, we are declaring this. And as a result, a judge can say we're not at war. But it's
11:03a really fundamental question. Are we at war who we are at war with? You know, is this
11:08a war immigrants coming into the United States? And nobody's questioning whether they are
11:14drug dealing, they're bad people. What the question really is, is does anybody have any
11:19individual rights anymore? Or are people all going to be rounded up as one large group
11:26and deported similar to the one of the worst situations in US immigration history, the
11:35Chinese Exclusion Act, where an entire nationality entire country was barred from living in the
11:42US or entering the United States just because they were Chinese. And we've had over 100
11:48years of apologies because of that. And I would suspect that if this were to go into
11:54place 20 years from now, we're going to see more apologies against Venezuelans. But even
11:59more importantly, where is it going to go from Venezuelan drug dealers? Is it going
12:04to go to Mexicans? Is it going to go to Guatemalans? Is it going to go to people here who are undocumented?
12:11Is it going to? Are they going to say any any immigrants who has ever been arrested
12:16in their life even for a minor crime from 30 years ago? You know what, they're an enemy
12:20of the United States. Now they're committing crimes in the US. They don't get a they don't
12:24get a removal hearing either. Or is it just going to be all immigrants? I mean, where
12:28does it end?
12:30I think a person who would be supporting this action would say something to the effect
12:36of, hey, they, they're a violent gang member. Hey, that they already across came into the
12:43country illegally. Do they get individual rights, considering they're not a citizen
12:48considering they broke the law by entering the country illegally? As an attorney, what
12:52do you say to that?
12:54Well, I say, I'm not arguing. Nobody wants to live in an unsafe country. I have children.
13:01I don't want my children to be sold drugs by somebody else. We're all in agreement,
13:06we want a safe country. We don't want we want bad people out. What we don't want is a situation
13:14where our individual rights are cut, literally at our knees, where people get grouped together
13:23as a collective punishment, simply because they are look something like a gang member,
13:30because they have they have skin color like a gang member, they have a tattoo like a gang
13:35member, without ever looking into determining whether they are good or bad, or they deserve
13:43to be here or not. Lots of people have been here for 2030 years, maybe they have spouses,
13:48maybe they US citizen spouses, children, maybe they have sick children, maybe they have sick
13:54grandmothers, maybe entire family is sick. Maybe they're the breadwinner of the family.
13:58Maybe they've never done anything wrong. None of this is taken into consideration. You just
14:03look the part and you're getting deported. And the United States was built on freedoms
14:08and individual rights and individual liberty. And that's all being cut away. And to me,
14:14there's a way that we can do both. There's a way that we can make America safe and at
14:21the same time not erode our liberties. And that is there are judges and hearings and
14:28these hearings can take very short periods of time, half a day, three quarters of a day,
14:33a full day, higher judges, higher trial attorneys, you have to give everybody their right to
14:40a fair hearing. And then if it's determined that they're a member of a gang, they're selling
14:46drugs, they don't belong to be here, they have no right to be here. I'm all in favor,
14:52get them out. I don't have a problem with that. I have a problem with the violation
14:56of people's rights.
14:57And you're essentially saying, hey, this is a slippery slope. Where does this end? It
15:02starts with these gang members. Who knows where it ends? As someone who deals with this
15:07every day, as an immigration attorney, what do you think is then missing from this conversation
15:12when it comes to immigration and when it comes to President Trump's immigration policies?
15:17Well, I think what's missing is the fact that we are making the immigrant the boogeyman
15:24that every immigrant in the United States is bad. And only people who were born in the
15:30United States are good. And everybody else is bad and should be out of the US. When in
15:35fact, immigrants have been the lifeline of so many different industries. For example,
15:43I would say half of the agricultural, I wouldn't say I know for a fact, half of the agricultural
15:50workers in America are undocumented. If we were to deport all of those undocumented immigrants,
15:57mostly Latinos, but some from all over the world. And if President Trump, this law was
16:03going to go into effect, President Trump can go on all the farms and just say, you know
16:06what, you look like you're part of a Venezuelan gang. You're out of here. No hearing. Guess
16:10what, we're going to be eating chips ahoy, because there will be no vegetables on our
16:14stands anymore. There will be no fruits on our stands. They're the ones who are giving
16:18the United States all of their fruits and vegetables. And without them, we have none.
16:25So we have to be so we have to be very careful on who we're saying is the boogeyman. Yes,
16:33there are yes, there are bad apples everywhere. They're bad Americans. There's more bad Americans
16:39than there are bad immigrants. If you look at the percentages of Americans in jail versus
16:43the percentages of immigrants in jail. But yes, bad people don't belong to be here. Good
16:48people, I would believe would what should be here as long as they are helping the United
16:53States, such as agricultural workers as a good example.
16:57This seems like as of this weekend with the judge blocking it, there's lawsuits, it seems
17:02like a legal mess right now. So what are you specifically looking out for next? Do you
17:07think the Alien Enemies Act sticks?
17:10Well, I think it's really going to come down to I was just having a conversation with one
17:15of my colleagues about it over the weekend. Because what's going to happen is is assuming
17:21the federal judiciary wants to get involved, which we're not 100% sure yet. We have this
17:27judge who put who put a stay on any removal for 14 days. And you know, President Trump's
17:32press secretary said, Oops, sorry, we did it anyway. What are you going to do about
17:36it? And that's really what it comes down to is the rule of law. Is President Trump actually
17:42going and his administration going to follow the rule of law? We have we have separation
17:47of powers. And if a federal judge says you can't do something, you have to comply with
17:52it. And here we have a situation where President Trump's administration has basically stuck
17:57their thumb in the judge's eye and said, we did it anyway. What are you going to do about
18:02it? And here we now have a constitutional or potentially have a constitutional crisis.
18:07Because the federal judges don't have a military, they don't have a police, they don't have
18:13a jail. So they can't go and do anything other than say, we hold you in contempt, and
18:20then make additional rulings. We hold you in contempt. Again, we hold you in contempt
18:24a third time and a fourth time. But eventually, those are just words and and signatures on
18:31a piece of paper. Eventually, the only way that you want President Trump to follow my
18:38belief, follow a federal judge, it's going to be public opinion. Because if public opinion
18:44says Trump, you can get away with it, then he's going to get away with it. And we're
18:49going to ignore federal judges rulings. And now we run into a situation where we don't
18:55even have a a check on powers. The famous check on powers between, you know, Congress
19:03makes the law, President enforces the law, and judges decide and interpret laws. Here
19:10we have presidents making law, executing law, and deciding law. And now we were what's
19:18left of our Constitution.
19:20What do you think public opinion is on this specifically? Because in this election, the
19:25top two issues facing voters were the economy and they were immigration. So do you think
19:31that the public is for this? Or do you think the majority of the public thinks, hey, this
19:35might be a bridge too far?
19:37I think when when it always comes to immigration, when when you ask the public questions from
19:4410,000 feet up, and you ask these questions, should should drug dealers be deported? Do
19:50they deserve a hearing? No, drug dealers don't deserve a hearing, get rid of them. Should
19:56gang members get a hearing? No, get rid of them. Should we keep? Should illegal immigrants
20:02be able to get some form of amnesty and get their green cards? And I believe the last
20:07thing I saw was a majority said no, throw them all out of the country. Except when you
20:12start talking about specifics, and individuals and individual situations. And then people
20:19start saying, yeah, get rid of all the illegal immigrants or get rid of all the undocumented
20:23immigrants, except my friend, Ron, my friend, Ron, he's a good guy. I work with him. He
20:27should, he's a good guy, he should be able to stay. But so when we talk about people
20:32as individuals, and we and we put a face on a person, rather than calling them the boogeyman,
20:41people change their minds very fast. And I think a situation where it's where it's one
20:48one thing to have Venezuelan gang members who are who are supposedly or allegedly gang
20:55members getting deported where people may not have as much empathy for them. But once
21:01others start getting embroiled in all of this, which is absolutely going to happen, there's
21:06going to be people who get deported without a hearing who left behind family, friends,
21:12jobs, homes who have been here for decades. And when you start putting faces on people,
21:19that's when empathy starts happening. And I believe people generally have empathy, most
21:25people. So once it becomes a more empathetic issue, then get rid of the bad guy issue.
21:33That's when public opinion changes.
21:35Brad Bernstein, this is really a situation that is going to continue to develop, continue
21:40to unfold. And as it does, I really hope you come back on and shed some of your expertise
21:45on it. Thank you so much. You're welcome back anytime.
21:48Appreciate it. Thank you very much.