Wednesday, March 11, 2009

340. On the Amicus Brief in the Federalization Lawsuit

I've read the amicus brief filed by Bob O'Connor on behalf of the NMI Descent organization in the lawsuit challenging federalization of immigration. You can find a link to it here at Wendy's blog.

This blog post is my initial reaction, brief analysis, and random thoughts about it--in no particular order.

1. It's written very well. Bob covers a lot of ground and hacks through a lot of underbrush and misconceptions about the Covenant and the CNMI-US relationship with clarity and perception. Although I disagree with the bottom-line conclusions, I am in awe of his writing talent and the depth of his thinking on the issues.

2. He takes some basic positions that are clearer, neater, and more cogent than either the CNMI or the US in their briefs: a) the Covenant's guarantee of a right for self-government over internal affairs is mandated by international law and the UN Mandate to the US for the trusteeship; b) the Covenant is not just a public law of the US but a bilateral agreement; c) it doesn't matter whether you call the CNMI a US territory that is different than other territories, or not a territory because of the differences--the real significance of the Covenant is that it alone governs the relationship between the US and the CNMI; d) because self-government over internal affairs is an essential part of the relationship between the CNMI and US, the Covenant and the limits it puts on US power must be construed to promote that essential, fundamental aspect of the Covenant; e) reading the provision to provide a purely institutional guarantee without a substantive provision could result in an empty, meaningless promise of self-government. The example Bob gives on this is the hypothetical if the US Congress were to immediately pass a law after each and every law enacted by the CNMI local government declaring such CNMI local law a nullity--not changing the Covenant, not effecting the existence of the local governing institutions, but clearly gutting the meaning of self-government.

3. These positions were so well-articulated I am persuaded as to each of them. I would have already agreed with a, b, and c before reading his brief and could even have articulated these ideas. d was a natural corollary. e was a stretch for me, but I was persuaded as to the issue of a substantive component to the self-governing provision of the Covenant despite my earlier discussion (argument?) with cactus on this matter, by the clarity of the example. The writing is brilliant and helpful to getting through the thicket of the Covenant and self-government of internal affairs at least this far.

4. Bob also disagrees with both the CNMI and the US on the next step of the analysis. He embraces the balancing test of Richards. He says because there is a substantive element to the guarantee of self-government, it must be weighed in the balance each time the US enacts a law applicable in the CNMI.

He dispatches of the US argument that the balance has already been struck in the covenant itself because at section 503, the Covenant acknowledges that US immigration laws can be later made applicable to the CNMI. Bob's argument is simple--that section 503 only relates to what federal laws do not apply at the start of the CNMI. That they may later apply does not negate the US's need to comply with the balancing test because the source of Congress's power to enact any law is section 105.

While I like that analysis of the Covenant's framework, this is also where I think his analysis begins to falter. The substantive element of self-government only applies to self-government over "internal affairs."

5. Bob glosses over the "internal affairs" issue. He assumes that anything that effects our economy to a great extent is automatically an internal affair. He argues that because we have handled immigration, it is a matter of self-government that we continue to handle immigration. He claims that because the CNMI has already wedded itself to cheap foreign labor, our use of cheap foreign labor is an internal affair.

If you use the same kind of hypothetical analysis on this argument that Bob uses on the institutional vs. substantive aspect of the right of self-government, you can see the flaw of this type of reasoning.

If we decided to build our economy on the production of heroin, it would be an "internal" affair and protected by the right to self-govern.

If we decided to become a banking center for money-launderers, it would be an "internal" affair and protected by the right to self-govern.

If we decided to embark on a new industry of cloning individuals or selling babies or whatever... it would be an "internal" affair and protected by the right to self-govern.

If we decided to make our economy based on selling jihadi movements information or goods or services, or have schools here for training, it would become an "internal" affair and protected by the right to self-govern.

You get the idea.

In a small place like the CNMI, everything can be said to have a big effect here. With Bob's analysis of what is "internal"--everything is internal, nothing is external, unless it doesn't effect the CNMI at all.

6. In Bob's analysis, the fundamental right to self-govern is so strong that few laws would overbalance it. In this case, he fails to credit any of the interests that the US has in passing the CNRA.

He goes so far as to say the US has NO interest in how the CNMI conducts its labor matters, how we structure our economy, how we treat workers here; the CNMI's decision to not extend rights to alien workers is an internal affair because those rights would be exercised here.

This argument ignores the reach of the US Constitution to the CNMI and its protections of equal treatment, due process, and fundamental fairness. The argument ignores the reality that the face we present to the rest of the world as being part of the US means that what we do in the CNMI can tarnish the US' reputation abroad. The argument ignores the case law cited by the US government that the US, not local governments, is "parens patria" and thus the US has an obvious federal interest in treating all people with dignity and fairness.

7. Bob also fails to acknowledge that US citizenship and the path of alien workers to US citizenship is not internal at all, but strictly within the province of the US federal government. He mentions that the CNMI has controlled the reins of access to rights, and claims that US control will flood the CNMI with aliens who gain rights at the expense of the indigenous.

In other words, he argues that as a matter of local self-government, the CNMI has a RIGHT to continue to have a two-tiered economy with a class of workers who are permanently excluded from every avenue to political rights.

8. He makes a few good points in his arguments, even for these offensive positions--for example, that the US has not had a coherent immigration policy.

No doubt that the US has vacillated on how best to have immigrant labor and protect US labor at the same time.

9. But it is disingenuous to suggest that the US has not embraced an immigration policy that promotes eventual citizenship for immigrants. It isn't uniform, it isn't all encompassing, but there are certainly SOME doors open for immigrants to use as a means for gaining citizenship--besides a familial relationship of marriage or parenting an adult US citizen child (which IR door is open here only because of the Covenant provision). In the US, some workers can gain US citizenship; some foreigners can get in through the quotas; etc.

In the CNMI, all doors are closed, except to those IRs who come through the applicable portals of Immigration and Nationality Act.

So the US Congress can express an interest legitimately in wanting an immigration system that does not rely on cheap foreign labor that is permanently excluded from the political process, permanently kept as an underclass.

And Bob's refusal to acknowledge that federal interest is the biggest weakness of his brief.

10. He also argues that the CNMI is not part of the US, arguing that the US's interest in control of its borders does not mean the US has any interest in control of the borders of the CNMI.

This is a very big leap and very significant. Bob doesn't give enough analysis to support his assumption.

It's also a very dangerous argument. Imagine if a foreign power came knocking at our door with its guns ablaze. We could 't defend ourselves. We're counting on the Covenant and the U.S.'s promise to protect and defend us. But what if "we" aren't part of the US. What interest would the US have in spending its money to defend our borders? Would we be claiming "self-government" then? Or would we be demanding that the US live up to its commitments?

Since the US has a covenant commitment to defend us, it obviously has an interest in securing even our border.

All in all, Bob's argument, although very well written and persuasive on some aspects, depends on very flawed assumptions:

1. that "internal affairs" to which local self-government applies includes everything that has an effect here and applies to immigration of aliens into the CNMI, applies to employment of foreign workers in the CNMI, and applies to control of the CNMI's borders.

2. that this is not the US and not within the US's border, so the US has no security interest.

3. that citizenship and rights of foreign workers are a matter of local concern only and not a federal interest.


Anonymous said...

The writing you admire so much is primarily that of Jed Horey.

The application of international law is convenient when domestic law is unsatisfactory, but cannot override the U.S. Constitution and laws. As a matter of federal law, its limited persuasive authority is minimized by our own positive law and case law.

That is the big problem with all the folks who want to bring in United Nations this and treaty-like that. There is no "there" there.

The relevant law is that of the United States, and Jed's creative attempt to bring international law into the mix -- attempted by Larry Hillblom and Bob O'Connor for decades -- has been unavailing in federal courts from the Interior IG tax case through the submerged lands case and many others before and after.

Saipan Writer said...

Anon--I'm not surprised it Jed's writing. It's really good.

In this instance, I don't think the brief suffers from the review of analysis of the past historical underpinnings of the Covenant. This brief does not argue for "international" law in lieu of US Constitutional law.

the anarchist said...

SW used the word disingenuous, which describes Horey and O'Conner.

Lil' Hammerhead said...

Very informative.. far too intellectual for my chiming in.

Saviors, cynics or naifs? said...

The Covenant is not a treaty. It is not a bilateral agreement. It is a Public Law. It can be amended or repealed by the U.S. Congress.

For the sake of argument, even if the Covenant is a bilateral agreement, the Covenant negotiators signed it and the CNMI's voters approved it. They expressly authorized the eventual extension of immigration law to the Commonwealth. They knew that immigration control would affect the economy; that is why they negotiated for language that did not immediately apply immigration and wage laws.

If the CNMI prevails in its argument, the Covenant is meaningless as any kind of "agreement." The CNMI will truly be the place where "a deal is never a deal." Having reaped the benefits of political unity with the U.S., not the least of which is hundreds of millions of dollars in aid received, the governor and his team now argue that the Covenant means what the CNMI wants it to mean at any given moment in time.

The indigenous rights group, for its part, spits on the collective political will of its own people. They must think 80% of their own people are children that need them (with their superior wisdom) to overrule their people. Sounds an awful lot like the paternalism they accuse the U.S. of. And what do they seek? Veto power over Congressional enactments designed to wean the CNMI off its addiction to cheap labor? Undoing the preference local people are supposed to have for jobs that pay a decent wage?

You can dress it up with flowery language and legal cites all you want; what is being defended is the CNMI's "right" to whore itself out to the Willie Tans of the world, at the expense of local families. Fitial, Rasa, Willen and the rest, are just bagmen for the chosen few who benefit from the current system.

As to the contention that there has to be a substantive element to the self-government guarantee, why should the CNMI get more substantive rights attached to its self government than the people in the 50 States? People in the States don't get to argue for "substantive fairness" when the Congress votes to authorize funding for pointless foreign wars, or multi-billion-dollar defense boondoggles. Mainlanders don't get to argue that the "consent of the governed" has not been obtained when the Congress passes the Bailout bill for the banks. U.S. voters would get laughed out of court if they argued for "substantively" more sensible CAFE standards for autos, or for protection of beaches from offshore drilling. Their sole recourse is through their elected representatives. They can get involved, lobby, organize, persuade those representatives to vote for more fair and reasonable policies, or failing that, they can "throw the bums out" and elect new ones.

The CNMI now has an elected representative. The sooner we all get with the program and stop the infantile lawsuits, the sooner we can work with Kilili to solidify the new law's benefits, and seek clarification or remediation of its harms.

Saipan Writer said...

Great comment, savior-cynics-naif. I agree in many respects, but not all.

The Covenant is an interesting document. I think it is both a bilateral agreement--clearly meant as such--and a public law. It's not JUST a public law because at the time of its enactment, the US Congress did not have authority to legislate for the CNMI, which was part of the Trust Territory of the Pacific Islands.

By its terms, certain provisions cannot be changed by the US Congress without CNMI approval. This would not be the case if it were just a public law.

But none of that answers the question of whether the US has the power and authority to enact laws relating to immigration here. The answer is clearly yes, it does. The Covenant clearly anticipates that the US Congress will do so.

The Covenant also gives the US the duty as well as the power to protect our borders against invasion and war and other external threats. Clearly the US has power to make laws that relate to border control--i.e. immigration.

The issue of a substantive element to the guarantee of the right of local self-government is another issue. That right extends only to "internal" affairs. It does not come into play in the US enacting laws that relate to matters for which they clearly have both a duty and the power to address.

And the Covenant drafters, in their "legislative" history, make it clear that the guarantee of the right of local self-government is to provide to the CNMI the SAME right as enjoyed by the several states. Whether this contains a substantive element or not may be debated endlessly. But a better analysis would be whether the US could pass such a law for the several states--if yes, clearly the US can enact the legislation for the CNMI.

If not, the Covenant includes the requirement that the CNMI be named specifically. Whether more is needed could be addressed in further talks between the CNMI and the US (under the Covenant). Or in court, in cases that deal with truely "internal" matters.

While I think there are fine distinctions and possible lines of inquiry that may lead to different results in some instances, depending on how you interpret these issues, in the current litigation, I think NONE of them make a difference to the outcome.

Handling immigration is not an "internal" matter over which the CNMI has local self-government rights. Protecting the border is not an "internal" affair over which the CNMI has local self-government rights. Employment of "alien workers" is not an internal affair over which the CNMI has local self-government rights.

Clearly, the US could (and does) legislate about these matters for the several states. The CNMI does not have greater rights to local self-government than the states.