Thursday, December 18, 2008

The Covenant's Promise of Self-Government

Fitial challenges application of US immigration laws here in the CNMI because he says it infringes our right to local self-government.

What does that right include?

Covenant sections 101, 102, 103, 104 and 105 set out the basic architecture of the relationship between the CNMI and the U.S. governments. The structure is essentially a "federal" system, where power is shared between a central authority and a regional authority.

Federalism is never an easy system. There are always tensions.

The central authority in our federal system is the US government, which has "sovereignty." The CNMI agreed that it would be UNDER the US's sovereignty by Covenant section 101. This means that the US government has the ultimate power to govern.

No other power granted or guaranteed by the Covenant can trump or supersede the sovereignty of the US. The only limits on the US's sovereign power over the CNMI are those expressly stated in the Covenant.

The CNMI was guaranteed the right to local self-government. Covenant section 103. Fitial tries to argue that this guarantee is a limit on the US's sovereign power. However, the legislative comments state that local self-government is not inconsistent with US sovereignty, suggesting that it is not meant to be construed as an express limit on the US's power.

The Marianas Political Status Commission (MPSC) comments on the Covenant that are part of its legislative history help explain what that guarantee of local self-government means.

The Commonwealth of the Northern Mariana Islands will be self-governing. This means that the people will determine their own form of government and the manner in which they will govern themselves with respect to local affairs....Article II provides for a commonwealth constitution which will spell out the manner in which the people will govern themselves.

(emphasis added)

The MPSC comment continues with this comment:

The United States will have sovereignty, that is, ultimate political authority, with respect to the Northern Mariana Islands. ... United States sovereignty is not inconsistent with the exercise of the right of local self-government by the people of the Northern Marianas. ...Moreover, the states and the Commonwealth of Puerto Rico, and to a great extent even the territories, have very substantial powers of local self-government. The people within these areas determine local policies without undue interference, notwithstanding the ultimate political authority of the central government. The same will be true of the Commonwealth of the Northern Marianas.

(emphasis added)

The CNMI has struggled with the meaning of its local self-government powers. It has tried to expand them beyond this stated scope by saying the guarantee relates to an exclusive, substantive area of governance. It has tried to argue that the Covenant grants the CNMI more power than the powers given to states and other territories. It has made these arguments in past cases like the case challenging the US audit of CNMI tax returns, and it makes it again in the present litigation challenging the application of US immigration here.

The 9th Circuit Court of Appeals has held that the CNMI's interpretation is wrong. The court held that the guarantee of self-government relates to the FORM and MANNER of local government, not to the content of legislation. We can decide whether to have a uni-cameral or bi-cameral legislature. We can set the terms for our elected leaders to whatever number of years we like. We can hold legislative sessions on different islands. We can designate our seat of government. We can decide how many legislators we want. We can decide whether to have municipal government agencies. We have great control over the FORM and MANNER of our government.

But according to the 9th Circuit Court of Appeals, we do not have an exclusive zone of legislative power. The guarantee does not set substantive boundaries for local control. In fact, the Court held that the US Congress may pass legislation affecting the internal affairs of the CNMI. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 755 (9th Cir. 1993).

The 9th Circuit's interpretation tallies with the comments that the MPSC made when the Covenant was drafted. The MPSC explained that the US Congress legislates for the territories (including the Commonwealth of Puerto Rico) under the US Constitution Article IV, Section 3, Clause 2, and that this power is broader than the authority to legislate as to states. The Covenant section 105, provides similarly broad power to the US Congress to pass laws for the CNMI, but provides a small concession to make sure those laws are meant to be applied here.

From the point of view of the United States, the existence of the power under Article IV, Section 3, Clause 2 is a fundamental part of a close and permanent relationship with any political entity which is not a state of the union.

...since the power of the Congress with respect to a commonwealth, such as the Commonwealth of the Northern Marianas, is ...broader than Congress' power with respect to a state, special precautions have been taken in Section 105. Article IV, Section 3, Clause 2 will continue to be the mechanism through which the Congress will legislate with respect to the Northern Marianas. But Section 105 provides that laws which Congress could not also make applicable to a state cannot be made applicable to the Northern Marianas, unless the Northern Marianas is specifically named in the legislation. This assures that Congress will exercise its special authority under Article IV, Section 3, Clause 2 purposefully, after taking into account the particular circumstances existing in the Northern Marianas.

The Covenant is clear on the ultimate authority of the US Congress to enact laws that affect the CNMI, including laws that impact our internal, local affairs. The US Congress cannot take away our local self-government, meaning it cannot deny us the power to set the form and manner of our local government. But it can pass laws that impact local aspects of our lives. It just needs to make sure it does so deliberately, and names the CNMI in legislation that is not applicable to all the states.

It's also clear that Fitial has ignored the 9th Circuit's decision and the MPSC comments on what the Covenant's guarantee of local self-government means. He continues to argue for an expansive view of the guarantee of local self-government. He has NO legal support for his argument. Nothing in the legislative history supports his view. Comments in the legislative history directly contradict it. There are no cases that support his view.

And as to the current legal challenge, the Covenant section 503 expressly authorizes the U.S. Congress to extend application of US immigration to the CNMI. The MPSC comment notes that the US Congress can act to
make them [immigration and naturalization laws] applicable either as they are applicable in other areas under the American flag, or in some special way which takes into account the particular conditions in existence at that time in the Northern Marianas.

In my opinion, Fitial is so far afield in what he argues is within the ambit of local self-government as to be laughable. He is so far afield in arguing against extension of US immigration laws to the CNMI as to be a joke. Of course, the hilarity comes with a high price as he uses our very limited CNMI public funds to pay expensive attorneys to push his untenable views.


Fairy said...
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Saipan Writer said...

The last post was spam--deleted.

cactus said...

Well, I know enough about this subject to know that there are other interpretations out there of what self-government means, and I expect you know this too. For present purposes, however, I will not dispute with you which is correct, but will leave that for the lawyers to argue, the courts to decide, and the scholars to debate.

What interests me instead is this: Much of the opinion on this subject breaks down into 2 categories -- those who think the Covenant provides a strong and substantive right of self-government, and that's good; and those who think it does not, and that's bad. You, however, seem to absolutely delight in what you perceive as the minimal, formalistic character of the Covenant's self-government guarantee.

Even if your view is legally correct, your gusto and even glee at expressing it baffles and frankly appals me. It strikes me in the same way as it would to hear someone exulting if indigent debtors were found to have no right to counsel in collection cases.

Basically, I think and hope you're wrong, but if you're right, it's nothing for any of us to cheer about.

captain said...

Correct me if I am wrong, I understand, that the one of the "duties" of the NMI Wa. rep. is to monitor" the actions of the US congress to make sure that, importantly, that the US congress does not inadvertently interfere with the right of the NMI to it's rights to "self gov." by passing any actions/laws that may/will interfear or "step" on that". Is this correct. Also is there another "agency", person within the Feds that have the same "monitoring" action?

Saipan Writer said...


I take great glee in pointing out how wrong out current governor is. The matter has been settled by court decisions. While you say there are "other interpretations" out there, yes--there are interpretations that the moon is made of cheese, too. That doesn't mean such interpretations have any legal basis on which to proceed with legitimate arguments.

The time to settle what was meant by the term "self-government" was when the Covenant was negotiated and agreed to. That was done. That is embedded in the express written legislative history about the section guaranteeing self-government.

I was not here when the Covenant was negotiated. I have nothing to do with what the legislative history is. But there was NO hidden meaning, no mistake, no promise of more than the MEANS and MANNER of local self-government. It is the MARIANAS Political Status Commission--the negotiators for the CNMI--that explain best what was meant and that is who I quoted. Not the US Administration, nor the US Senate or US House committee reports.

You seem to think that the Covenant's express guarantee of local self-government, as defined and explained by the Marianas Political Status Commission, is a very small "formalistic" thing. But I think that you mistake the importance of such protection. Unlike Guam, who could have its organic act changed to deny it the very power to form its own local government, our Covenant says this is part of our rights. We choose whether to have a governor, municipal councils, and all of the details of how we are governed at a local level.

I also do not believe that US citizens in the CNMI deserve more rights than US citizens in the mainland.

The local self-government that we enjoy is the SAME as the local self-government enjoyed by the states. That makes me happy.

Nor do I think we deserve less rights than US citizens in the mainland. I am all for equal treatment, but I'm not in favor of the CNMI's arrogant and ridiculous insistence that it get more and more and more than was negotiated and agreed to in the Covenant.

The major change I would want from what was agreed to in the Covenant is voting rights on par with US citizens in the states, and that means the right to have our delegate vote--not just in Committee but on the floor, and the individual right of citizens here to vote in Presidential elections.

And this desire is also about equality.


Saipan Writer said...


You're right. The way the Covenant was designed, the Resident Rep's position was considered sufficient protection to make sure the members of Congress were alerted to our local concerns. The Resident Rep, though, is not a member of Congress.

I'm glad the act that federalizes our immigration also changes this to give us a delegate who is a member of Congress, who can introduce legislation and vote in committee.

As noted in my comment to Cactus, I think we also need him to have the right to vote on the floor of the House, and we need a right to vote in Presidential elections.


captain said...

Pls read my last remarks at the "Yappers" blog" and send me a comment on the feasibility or not. especially about the five year "residency" I understand the workers contract under the NMI Labor. but as far as the Feds actions and why is NMI exclude from the Fed 5 year resident Law?? I have mixed emotions of my staements as I know many worker who are arrogant and should not be here. I have "dismissed" many from aconstruction job. Many companies where "stuck" with the se workers that where hired and upon arrival where not qualified and had an attitude. I have spent the money and sent many back over the years in the past. But on the same token, luckily we have mojority that are "proffesioanal and only have to be "preened" ,

Memory like an elephant said...

A very informative post. And do you know who advised then-Governor Guerrero to challenge the feds, resulting in the '93 opinion? None other than Howard Willens.

Cactus, I respect your opinion, but whether we should cheer or boo-hoo in our beer is irrelevant; the sooner our leaders level with the people, the sooner we will quit distracting ourselves with delusional ideas, and the sooner we can buckle down and make the best of the opportunities this change will engender.

cactus said...

"But I think that you mistake the importance of such protection."

I attach no importance or value whatsoever to this so-called "protection." Control over the "means" and "manner" of government is meaningless without the substance. What good is to have a government at all if the US is free to act as if it does not exist? It is a mere charade of a government -- a bunch of people strutting around calling themselves "Governor" and "Senator," with no more claim to the reality of such offices than Martin Sheen has to be called "Mr. President." Indeed, it gives a whole new meaning to the term "acting governor!"

That is the situation you are delighted with. It is not equality with the states. It is equality with Guam, Puerto Rico, American Samoa and the Virgin Islands, whose interminable colonial status has become an international disgrace. By the same logic, Burma should be delighted to still have military dictatorship, and Saudi Arabia to have an absolute monarchy.

Saipan Writer said...


Our local government can and does act, passing laws that have effect, deciding policies, spending money. They have real power. This is not a charade. They're not just "government" in name only, but real self-government.

And we are different than Guam, which is still a colongy and which could have its government changed by the US Congress. The Covenant protects us from that intrusion.

As for being a state, we don't have the population or size to be a state. It would hardly be fair to any of the states if we were made a state. There are suburbs in the US that have larger populations than the CNMI.

We chose a status like Puerto Rico and the Virgin Islands (and in some ways like American Samoa). The states do have better status, because they're states not territories.

And even the states have to deal with the sovereignty, the ultimate power, of the US federal government.

But we knew all this when we agreed to the Covenant.

We could have chosen independence, but didn't.

I think your anger is misdirected. Perhaps you should be angry with Howard Willens who was one of the negotiators of the Covenant for the CNMI, or at the people who voted for it.

But I also agree with Memory-like-an-elephant. Good or bad, we need to know and deal with the reality.

cactus said...

"And even the states have to deal with the sovereignty, the ultimate power, of the US federal government."

Last I heard, the people were sovereign, not the federal government. Also, last I heard, the federal government was one of limited and enumerated constitutional powers.

I am beginning to get the impression that your views on the current controversy are rooted in a highly nationalistic mindset that is foreign not only to the Covenant, but to the US Constitution.

Saipan Writer said...


Sovereignty is, according to the opening quote in Wikipedia, a term with many different meanings and one often disputed.

It would be no surprise if we had different ideas of sovereignty. I'm not sure mine are fully thought through. I do believe that the source of governmental power is the people.

I also believe that the Constitutions that people adopt act to crystallize the power in institutions of the governments they create. So that governments do have sovereign power, which can be changed by the people.

The states have sovereign power, but by no means is it superior or independent of the federal government's. The Civil War pretty much ended the concept that states' sovereignty includes the right to secede.

Our own Covenant limits our ability to do that, too--requiring "mutual consent" by both the CNMI and the US for the Commonwealth to now secede or change its political relationship with the US.

While I think states and territories have some sovereign powers--and the courts have held that the CNMI government, for example, has sovereign immunity-- the federal government has superior rights to states' rights when it comes to legislation, under the US Constitution's supremacy clause. That applies here as well as in the other territories and the several states.

As I said in this blog post-federalism is never an easy system.

I'm not sure I have a "highly nationalistic" view of things. But I'm sure that, perhaps for the worse, my views in favor of the US federal government have strengthened as I live here in the CNMI.

I am deeply distressed by the situation here. I am so saddened by the lost promise that seemed so significant when I arrived 24 years ago. I am disappointed in our elected officials.

I've felt this way about federal officials--President Bush for one. But somehow that is not so close or meaningful.

And while we don't agree on PL 110-229 and the extension of US immigration laws to the CNMI, or the meaning of "self-government" in the Covenant, I appreciate your thoughts and point of view, the reasoning, balanced perspective and commitment to a rational process.

It makes me think more, and questioning what we believe and what we think is a good thing.


cactus said...

"I am deeply distressed by the situation here. I am so saddened by the lost promise that seemed so significant when I arrived 24 years ago. I am disappointed in our elected officials."

Well, I know what you mean by that, no doubt. But what keeps me going is my belief that the promise is very far from lost.

The self-government I defend has little to do with our current crop of elected officials, and everything to do with the kids I see going to school every day who will grow up to inherit this place, who have the potential to do great things with it, so long as we can preserve for them the POWER to do it.

We must not, in our disgust at the Buchanans and Hoovers running the place now, prevent our future Lincolns and Roosevelts from ever aspiring to such a role. We must protect the future for them to shape. Only if we fail to do so will the promise truly be lost, and we will have lost it, and future generations will rightly curse us for it.

Anonymous said...
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stella said...
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Saipan Writer said...

I'm not sure what it is about this post that has attracted so many repeated postings of spam about educational loans, but all of the deleted messages are SPAM.


Anonymous said...

The discussion between Saipan Writer and Cactus provides good information. I also appreciate the civility between the two.

Happy New Year to the both of you and to the entire world.

Mandaragat said...

Excellent viewpoint!

Happy New Year to all...