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.