Wednesday, September 17, 2008

269. CNMI vs. U.S. Case 1:08-cv-01572, 2nd installment

Today's newspaper headlines from the Tribune and the Variety suggests that the CNMI may suffer negatively in its relationship with the U.S. because of filing the lawsuit. The Governor's public relations aide, Charles Reyes, tries to spin this concern as "discrimination" by the U.S. Nice try, but there's no suggestion anywhere that the U.S. plans to retaliate against the CNMI simply because it filed suit.

The Variety clearly exposes this concern as specifically related to drafting the regulations to implement the law. How can the CNMI administration cooperate in designing these regulations when it is challenging the underlying legislation? There is no doubt that the lawsuit will affect the CNMI-U.S. relationship as it concerns implementing P.L. 110-229.

More thoughts on the lawsuit:

The complaint is premised on several assumptions, mentioned in my previous post. It is also based on intentional disregard of certain facts and legal points.

1. No mention of U.S. sovereignty. The complaint speaks of the "terms of affiliation" between the CNMI and the U.S. as expressed in the Covenant.(Complaint paragraph 1.) The complaint repeatedly references the Covenant provision for the CNMI's right to self-government of local matters found in Section 102, and mentions this is the "core" of the Agreement. There is no corresponding concession or mention that the Covenant, at Section 101-perhaps even more fundamentally, clearly recognizes that the CNMI is not only in political union with the U.S., but also is "under the sovereignty of the United States of America."

2. No mention of the massive support for federalization from the foreign worker community. The complaint speaks of the impact of federalization on the foreign workers in the CNMI, characterizes those effects as solely negative, and paints itself as the champion of distressed foreign workers here. No where is there any mention of the massive support for federalization among the foreign workers here.

More ironically, some of the negative aspects of federalization that the CNMI complains of are the result of the legislation having been stripped of benefits for the alien workers at the insistence of the CNMI administration! Specifically, the complaint laments the effect on long-term workers, but argued to Congress against grandfathering these workers in with permanent residence.

3. Guam is hardly mentioned. In trying to portray the CNMI as isolated and remote, the complaint mentions the mainland and Hawaii, but ignores how close we are to Guam. (Complaint paragraphs 1, 14) It offers no explanation of why Guam can have a decent economy with U.S. control of immigration and the CNMI can't.

Besides omissions, there are some distortions presented in the Complaint. One could argue that the entire complaint-- where it calls our foreign labor workforce "stable" and predicts the doom & gloom for the CNMI future as if it were a certainty--is itself a distortion! But here are some other specific ones:

4. The Complaint makes a claim that the U.S. has violated Covenant section 105, but glosses over Sec. 105's opening text. That section starts as follows:

The United States may enact legislation in accordance with its constitutional processes which will be applicable to the Northern Mariana Islands, but if such legislation cannot also be made applicable to the several States the Northern Mariana Islands must be specifically named therein...

The only limitation on this broad power is the right of local self-government. And so the complaint tries to force the CNMI's desire for unlimited access to foreign workers into this exception.

Section 105, and the rest of the Covenant, grant as broad legislative power to the U.S. Congress with regard to the CNMI as it has with the rest of the States and Territories. Nothing in the Covenant suggests that the limitation of "local self-government" means something different here than it does in the rest of the U.S.

The Covenant expressly extended federal laws that were in existence at the time that applied to Guam to the CNMI (as they applied to the States) (Covenant sec. 502), with very limited exceptions. The Covenant expressly permits the U.S. to legislate for U.S. control of immigration (Covenant sec. 503(a)), and to extend minimum wage laws here (Covenant sec. 503 (c)).

5. Our lack of voting rights is claimed as a violation of the U.S. Constitution. The claim is that the political process by which P.L. 110-229 was enacted was defective and violated the U.S. Constitution, Article.

This is by far the most interesting claim. It has emotional appeal. It resonates with our history lessons--no taxation without representation. And I imagine that every U.S. citizen here would support the push to give us voting rights in federal elections (especially the Presidential election).

Note this claim is not saying that the political processes of the Covenant (Section 902 talks) failed to occur or were not available. It is challenging the basic fact that the CNMI had no voting representative in the U.S. Congress.

The problems, as I see it, with this argument are two-fold: 1) This argument would mean that all U.S. laws enacted for the CNMI are defective (including budget appropriations and other help we are relying on). And 2) the Covenant itself expressly designed our relationship with the U.S. to exclude our representation in Congress! It gave us only a "Resident Representative." And it gave us a mechanism for negotiation and dialogue with the federal government through our CNMI government. (Covenant sec. 902.)

Attacking the political process by which P.L. 110-229 was enacted and applied to the CNMI is an attack on the basic, fundamental cornerstone of the COVENANT. If this were to succeed, it would likely wipe out the whole Covenant, or at least cripple it so severely we'd be back at the beginning of our negotiation process.

I doubt that any court in the U.S. would buy this argument.
It is especially ironic that this argument is raised in the very legislation that finally gives us a voice (however faint)-a voting representative/delegate to Congress.

6. Although the complaint says that it is aimed at the defective political process by which P.L. 110-229 was enacted, most of the verbiage is aimed at showing how wrong Congress was in its decision to extend immigration here. But in one of the court cases cited in the complaint, the court has this to say:

...nothing...authorizes courts to second-guess the substantive basis for congressional legislation.

This is the heart of the matter. Our administration has leveled an attack on legislation it doesn't like, arguing how very wrong it is, how very bad it will be for the CNMI, how the U.S. Congress had miscalculated. But Courts simply don't get to change or stop legislation because they think Congressmen were uninformed.

(Too bad--we could challenge so much of what our CNMI Legislature does if this were the case!)

7. My favorite ridiculous claim in the complaint is that no other community in the U.S. is subject to the same level of federal restriction.

The very essence of P.L. 110-229 is to apply U.S. immigration law to the CNMI. The basics of this law apply to all of the U.S. The restrictions imposed here will, in fact, be more sensitive to our community and special needs, giving us benefits other U.S. communities do not have. These include the continuance of CNMI-Only permits for some foreign workers, so that we are allowed to have contract workers in job categories who wouldn't be allowed to work those same jobs in the U.S.

Summarizing: The CNMI's economy does not operate in a vacuum. It is tied to the U.S. economy, as well as being influenced by world events. When we suffer economically, we look to the U.S. for help, so even our "local" economic conditions have a greater effect beyond our borders.

Immigration and foreign labor are not "local" matters.

We've agreed to the CNMI in political union and "under the sovereignty" of the U.S. and have expressly acknowledged the power of the U.S. Congress to pass legislation that applies to the CNMI.

Nothing in P.L. 110-229, or in the way it was enacted, intrudes on our very limited right of "local self-government" over internal affairs.

A Last Comparison:

An Excerpt from "Slavery in the Light of Social Ethics," by Chancelor Harper, printed in Cotton is King, and Pro-Slavry Arguments: Comprising the Writings of Hammond, Harper, Christy, Stringfellow, Hodge, Bledsoe, and Cartwright, on This Important Subject, E.N. Elliott, ed. (Augusta, GA: Pritchard, Abbott & Loomis, 1860):

... But let us suppose it [emancipation] to be brought about in any manner, and then inquire what would be the effects.

The first and most obvious effect, would be to put an end to the cultivation of our great Southern staple. And this would be equally the result, if we suppose the emancipated negroes to be in no way distinguished from the free labourers of other countries...Even if it were possible to procure laborers at all, what planter would venture to carry on his operations under such circumstances? I need hardly say that these staples cannot be produced to any extent where the proprietor of the soil cultivates it with his own hands. He can do little more than produce the necessary food for himself and his family.

And what would be the effect of putting an end to the cultivation of these staples, and thus annihilating, at a blow, two-thirds or three-fourths of our foreign commerce? Can any sane mind contemplate such a result without terror? ...

COMPLAINT paragraphs 7 and 71 (portions):
"Finally, if left unchecked, P.L. 110-229's forced removal of two-thirds of CNMI's existing employment base and its projected devastation of the local economy by 50% or more would violate constitutional rights of due process and equal protection of CNMI's people, employers, and property owners.

P.L. 110-229 will strike a devastating, and perhaps fatal, blow upon the Commonwealth's economy by prohibiting the CNMI from ensuring an adequate supply of labor for local residents and businesses."

An end to slavery...Thanks to P.L. 110-229.

1 comment:

Anonymous said...

Excellent analysis. The complaint is an embarrassment, full of wrong assumptions, self-contradictions, obvious omissions and outright misstatements.