Tuesday, September 16, 2008

268. CNMI vs. U.S. 1:08-cv-01572. Ruminations--installment 1.

Thanks to Wendy's link directly to the Complaint for Declaratory and Injunctive Relief, I've been reading up on the CNMI's lawsuit against the U.S. The case seeks to stop implementation of P.L. 110-229 in the CNMI.

I've put up a brief, fairly neutral assessment of the lawsuit at the MLSC's DAY IN COURT blog. The analysis here at my personal blog,Saipan Writer, is more opinionated!

The case is assigned to Judge Paul L. Friedman, who, interestingly enough, has had a small part in the Abramoff litigation.

The complaint is signed by David W. DeBruin of Jenner & Block, with William M. Hohengarten and Sharmila Sohoni, also of Jenner & Block listed as additional counsel.
Howard P. Willens is listed as "Special Legal Counsel to the Governor."

I've been trying to understand both the factual and legal claims, as well as the "vision" that the Fitial Administration has for economic recovery of the CNMI, which is ostensibly the motivation behind this lawsuit.

There are some basic assumptions that act as the underpinnings for the factual and legal claims. These are not typically stated overtly, but are embedded in the rhetoric of the complaint. In my opinion, none of these assumptions are true.

1. The CNMI cannot be self-sufficient. It must exploit the availability of cheap, foreign workers in order to maintain its economy. In fact, in the CNMI "labor" means foreign labor.

The complaint does not identify new and viable future economic development for the CNMI. It claims that federalization will harm any chance at recovery, but the complaint simply looks to the past to describe those economic prospects.

The complaint mentions both the tourism sector and the garment industry. It first complains at paragraph 32 of economic limitations imposed by the Trust Territory government; and then touts the CNMI past under its new control as a model of good economic management and development. At paragraph 41, speaking of the past, the complaint says "The Commonwealth also began systematic efforts to encourage foreign investment in the visitor industry and to bring tourists to the islands in substantial numbers...These efforts were successful." It then describes some of the setbacks from the Asian economic crisis, the SARS outbreak, the terrorist attack of 9/11, and even the pull-out of the garment industry after rule changes by the WTO.

Then it makes this startling statement:

"The Commonwealth's economy can be resuscitated only through a renewed influx of foreign investment and the presence of a stable workforce able to support construction and new economic development."

When it speaks of labor, it means only foreign labor. It complains at paragraph 70 that the federalization of immigration will "pre-empt" CNMI labor laws. Inherent in this statement is the assumption that we have no labor laws that apply to the local work force, that all our labor laws relate to foreign workers, because the federalization of immigration does not change anything as to local workers.

According to the administration, we must turn back the hands of time. We must be allowed to do again what we did before. This is the program Governor Fitial suggests as the road to economic recovery.

This approach ignores that the past policies resulted in only short-term benefits that made some (like the Governor) rich, but did not provide sustained economic growth for the CNMI, and led to our current predicament.

2. The CNMI has a right to depend on foreign workers for its economy.

The complaint makes the following unequivocal statement: "The Commonwealth cannot grow its workforce by attracting American labor." Implicit throughout the complaint is the insistent whine that the CNMI MUST HAVE foreign workers in order to have an economy. It is reminiscent of the argument of white plantation owners in the South who insisted they needed slavery in order to have an agricultural economy, and thus argued that slavery should be allowed.

Could we have a prosperous economy from our own sweat? Hidden in the text of the complaint is the information that the local population/U.S. citizen base has doubled since the Covenant went into effect. One obvious option that the Commonwealth could use to grow its workforce would be encouraging a business climate that keeps its local workers happy so they don't migrate to the U.S.

Furthermore, we live in a mobile world; if the CNMI truly becomes part of the American economic community, then there is no reason to believe that American labor will not be attracted to employment opportunities.

As it is now, though, the underlying assumption of the complaint shows the current administration wants to keep the third-world status of our economy, keep us depending on cheap foreign labor, easily exploited and without civil rights.

In addition to the subtle, unstated bigotry in the rhetoric of the CNMI's right to have cheap foreign labor to ensure its own wealth, there is an express element of racism in the complaint. At paragraph 48, it reads: "American workers also may be deterred from moving to the Commonwealth by the Commonwealth's unique culture, its ethnic and demographic makeup, and the higher cost of living. To an ordinary American worker, moving to the Commonwealth will feel more like moving to a foreign country than moving from one part of the mainland to another."

First of all, it suggests that "American workers" are not Chamorros and Carolinians. U.S. citizenship makes one an American, but the repeated phrasing in the complaint about American workers seems to refer only to U.S. citizens coming from the mainland U.S. It ignores the American status of those living here. It ignores the great diversity that exists among Americans from Guam, Hawaii, Alaska and the contiguous 48 states.

3. The use of foreign workers in the CNMI is not an immigration matter but a labor matter; the entry and departure of foreign workers into the CNMI and use of them for labor is a "local" matter only.

There is a repeated refrain in the complaint that our Covenant guarantees our right to local self government over internal matters, and that regulating our use of foreign workers falls within the ambit of this protection. At paragraph 61, the complaint alleges that, by regulating the admission of foreign workers to the CNMI for employment, the law "preempts local labor laws."

"No other community in the United States is subject to such massive federal intrusion into matters of local concern."

It seems obviously wrong to say that contracting for services of citizens of foreign countries is a "local" activity. It definitely involves international communication and commerce. It involves working with foreign governments. It effects the American image in foreign ports.

And it seems obviously wrong to say that no other community in the U.S. is subject to such "federal intrusion" when in fact EVERY community in the U.S. is subject to the same U.S. immigration control!

4. The CNMI has already addressed abuses of foreign workers that caused the U.S. Congress' concern with immigration, and there are no longer any problems.

The complaint says at Paragraph 2 that "To address issues that had existed in the past, local CNMI labor laws currently provide extensive protections for these foreign workers while they are employed in the Commonwealth."

There are two parts to this assumption. One that the CNMI has better protections for foreign workers in place now and so Congress made a mistake in its reasons for federalizing immigration now.

And two, that our wonderful our new law provides primary preference in employment for citizens and permanent residents, and this will address the issue of building a better local base for the economy. (Paragraph 54.)

Neither of these tally with reality.

The CNMI has always had some form of protection on the books for non-resident workers. The CNMI law has always had a preference for local hires. It fails to mention that there is nothing to suggest that the CNMI will be any better at enforcing the protections or preference now than before. And it ignores the real problem--that the assumption that we MUST have foreign workers to have an economy will always undermine development of our own talent pool.

5. The U.S. taking away the CNMI's cheap foreign labor market fundamentally violates the Covenant relationship between the CNMI and the U.S.

We are addicted to cheap foreign labor. The U.S. federal government is taking away our drug. This changes our relationship to the U.S. It requires us to grow up and act responsibly--on our own, with an economy built on our community resources.

We want our drug.

Did the Covenant build in a right for the CNMI to be addicted to cheap foreign labor? Are we entitled to have slaves?

The complaint calls the U.S.'s federalization of immigration "paternalistic" and claims that there was no call for the U.S. to intervene. But shortly after that it alleges that the U.S. must help the CNMI with its economy under the terms of the Covenant.

The Covenant says that the U.S. will help the CNMI join the American economy:

"the Government of the United States will assist the Government of the Northern Mariana Islands in its efforts to achieve a progressively higher standard of living for its people as part of the American economic community and to develop the economic resources needed to meet the financial responsibilities of local self-government."

The complaint alleges that this section 701 of the Covenant means that we are entitled to our drug-cheap foreign labor, and the U.S. has to help us get it and keep access to it.

But I read this very differently. To me this says the CNMI will become part of the U.S. American economic community--and that means following the same kinds of rules and recognizing the same kinds of rights that workers must have.

To me, the development of economic resources means OUR OWN economic resources, not exploitation of the teeming hordes of impoverished Asia. And local self-government means governing ourselves about matters that are ONLY local concern--not involving interstate or global commerce, or other matters of larger scope.

In the next installment, I'll ruminate on some other aspects of the complaint--obvious omissions, more contradictions, and the legal claims.


Pragmatic Plato said...

The representatives of the people have come out against this lawsuit. There has been no public mandate for this action. How then can the Governor single handedly sue the Federal Government on behalf of the CNMI? The CNMI has not okay'd this.

There must be some legal way for average citizens to band together and file a class action lawsuit to stop this from moving forward. If the governor wants to continue this battle he can do it on his onbehalf (Ben vs. the Feds) and his own dime.


Lil' Hammerhead said...

I don't disagree that the CNMI, as is the case with other places that depend on tourism (Hawaii, Las Vegas, etc.) does not need additional outside labor.

The problem here is, the way it has been set up and handled.

Outside labor hasn't been brought in only to fill needed positions.. it's being used to keep labor cheap. Period. It's been disastrous to the local workforce because of this.

If a set of appropriate minimum base-pay rules were in force for various positions, that applied to local and non-resident workers, was in place, and if non-resident workers had the ability to quit and seek other employment on-island at will.. many of these problems would be alleviated. If you have to pay an accountant with 5-10 years experience a minimum of $25,000 a year.. you are going to invest that in someone who will be with your company for a long time. If you're going to pay an accountant $4.05 an hour.. you could care less about that employee, and care less about hiring a resident.

Our tourism industry will need outside employees.. the trick is, to ensure that the workplaces are competitive and positions are not filled with non-resident workers simply because the business can get off cheap.

I don't see that Guam or Hawaii have any problem meeting worker needs under the US Immigration system.

Saipan Writer said...

Outside labor doesn't have to be foreign labor.

There are thousands of FSM and Palau citizens in the U.S., and they are legally allowed to enter the U.S. and the CNMI under the Compacts of Free Association. They came en masse here first, but started leaving because the conditions for employment are so bad.

The federalization addresses the real problems more affirmatively than any CNMI law has done or will do. And it means that any foreign workers that we do have will be treated more fairly. Some may even be able to get on track for permanent residency through their work, not just by marrying a U.S. citizen.

The will here in our CNMI government is to keep foreign labor without rights in menial jobs, and to "train" the local population to be management. The CNMI will only perpetuate a slave-like labor system. And we'll never attract "outside" labor, other than the most desperate foreign workers willing to forego rights, with a local system.

Good point as to Guam and Hawaii.

Go for it! You can choose any number of options: file an FOI/sunshine request to find out how the litigation is being funded; sue in court as a taxpayor to stop the atrocity; start a citizen group and join the fray as an amicus curia.

Well, you get the idea.

Lil' Hammerhead said...

I agree with you on that Jane. I don't think our payscale will ever mirror Honolulu's for example.. so we may not be as attractive to that pool of Micronesian workers who can go make much more elsewhere. Drive by the backside of the hotels along Kalakaua Avenue at 5pm.. they are lined with Micronesian hotel workers changing shifts.

So, in theory, I agree with you. I don't know if they'll choose to come and work at a hotel here for $7.00 an hour in 2014, or go work at a hotel in Honolulu for $14.00 (or more by than) an hour.