Oh the News!

The Saipan Tribune gives a sketchy report about a lawsuit recently filed:

where: the 9th Circuit (this is a court of limited jurisdiction and you can't usually initiate cases there)

Plaintiff: National Chamorro Association of the Mariana Islands/president Glenn H. Manglona. This organization is so well known that no one has heard of it until today's newspaper article came out. (Well, maybe in Rota?)

Represented by/Attorneys/Co Plaintiffs: Robin Hood International Human Rights Legal Defense Fund and Paul Risenhoover. OMG! One federal judge said Paul Risenhoover is "a fraudulent opportunist."

Judge Batts made clear she viewed Mr. Risenhoover, an Oklahoma native who is about 30, as an unsavory character. She described him as a fervent anti-Communist who was deemed to be so unreliable by the Government that it ultimately stopped its dealings with him, fearing he would become a liability at trial....

[S]he said in her opinion that Mr. Risenhoover, who speaks Mandarin Chinese, English and Hebrew and claims to be a law school graduate who has not passed the bar, may have also been involved in other illegal activities, including other illegal organ sales and a fraud scheme on the Internet.

And if all that isn't enough, the lawsuit itself sounds ridiculous. The Trib says the complaint is 200 pages! That's long by any legal standard.

And some highlights to emphasize just how ludicrous this is:

They're also filing in international court on behalf of native Chamorros, Carolinians and Formosans???

The 9th circuit lawsuit apparently challenges whether the US Congress had the authority to enter into the Covenant. (Please read the US Constitution and the power bestowed on Congress regarding foreign affairs, territories, and commerce)

5th and 14th amendment claims for takings violations without compensation /impairment of contracts. (Is there any foreign worker here with a contract under CNMI law that was in effect on 11/28/2009 for a period that would last beyond 11/27/2011? I doubt it. Most CNMI contracts were for one year, some for two. But longer?)

And the lawsuit claims we have a right to cheap foreign labor under CNMI control because otherwise we may not be able to live--the CNRA constitutes a deprivation of the right to life!

What nonsense.

(Of course, Wendy beat me to this, and she has the pleadings available for review. I especially like that they have highlighted portions in yellow, and green, and red, and blue...OMG!)

Power Struggle -umbrella permits

I've written another lengthy blog post with legal analysis, this time about the power struggle over umbrella permits, at the Day In Court blog.

I see more fruitless resistance by the Fitial Administration, to the harm of our community, including alien workers, employers, and the rest of us. We're all suffering from the uncertainty. We're all suffering from the wasted precious resources of our local government. We're all suffering from the focus on this problem when so many other issues need our local government's attention.

In Labor, On Labor

I've written an analysis about Jacinta Kaipat's latest ploy to have our CNMI Legislature enact hiring "benchmarks" to "prioritize" hiring U.S. citizens. It's posted at the MLSC blog, DAY IN COURT.

EDIT: Link now working. The link to the original Marianas Variety article in that post doesn't work just yet, but I'm trying to get that fixed. (You'd think it would be easy, but alas--computer issues today.)

The federalization of immigration brings with it a host of changes, including the need to change our thinking to equal opportunity, non-discriminatory employment practices. Obviously, some people are having a much harder time letting go of the past than others.

Eventually, though, I think we will have a community that is more self-sufficient than at present. I think we will have more opportunities for better jobs for everyone here. I hope that what foreign workers we have in the future will have rights and jobs that pay for the value of their services. This will all take some committment to free and fair enterprise.

If we build our community on values that embrace equality, freedom, environmental protection, and human dignity, we should be able to surface, breathe, and rescue ourselves from the current precarious, drowning situation we are now in. At least, that's what I hope and believe.

"Where Is Our Great Wall" said

This excellent comment was buried in one of the threads, and I think it deserves a lot more light of day.

I agree with you Jane regarding the romantisizing of our recent past. I left this island nearly 20 years ago and just recently returned.

I don't even see anything close to the Great Wall or the Pyramids (other than the empty GIG that was once a thriving disco that rivaled anything in the region). The La Fiesta was not dependent on cheap labor and has been empty for years while we had access to cheap labor.

What I did see upon returning has been eye opening and far from anything I would revel in and consider great development and a prosperous economy. I found destroyed reefs and barren lagoons (in comparison to 20+ years ago). I found empty shells of 30 plus garment warehouses. I found empty strip malls. I discovered that around 70% of those I grew up with and went to school out here with no longer live here. They have families elsewhere. I saw that nearly 90% of the waitstaff, front desk clerks, bartenders,etc were guest workers (I was a waiter 25 years ago and my pals were front desk and housekeeping). I noticed that all the Mom and Pop stores that had once been owned by me and my friends Moms and Pops were now owned by foreign investors. Diego's Mart, Pop's Store, Morgans Mini Mart, Carmen Safeway, Tenda Store, Aldan's Gas Station, Farmers Market, etc. Same with the bars and restaurants like Ship Ashore, House of Chang, Chamorro Village, Town & Country, Chamorro House, etc are all replaced with foreign owned businesses. I noticed the streets that used to be filled with Japanese Tourist were now empty. The golf courses designed 20 years ago by Jack Nicolas were now unkempt. The hotels that used to average 90% occupancy now ran at around 50%. The Jets that used to fly between here and Guam are now prop plans. Direct flights to Japan that used to fly in and out 3 times a day down to 2 twice a week.

Where is our great wall? We had none. 30 years ago we could have built something great.

We had geographic edge with Japan only 2 hours away. We had great resorts and golf courses that were maintained and rivaled those in other areas of the pacific. We had relationships with agents and airlines that secured set routes and put us int he position to be the HUB for the Pacific region. We had locally run businesses and local workers at all levels that kept the money in our economy and didn't funnel it all out. We had a solid foundation birthed of the Covenant to maintain all of this and grow to be prosperous.

What happened?

We got greedy and we got led by some terribly short sighted leaders.

Our downfall is not to blamed on federalization of immigration. It is blamed on our own doing. We embraced garment. We spent millions on lobbyist. We exploited foreign labor and used guest workers to replace local labor rather than filling gaps and instead replaced our local workforce. We pulled in foreign businesses at the expense of local entrepreneurship. We doled out public land to foreign investors instead of catering to local investors. Our leaders did this because they could negotiate kickbacks and become middlemen in the schemes. Do land swaps and make millions overnight.

3 days ago the federal government took control of immigration in the CNMI; 27 years ago we destroyed this economy.

December 1, 2009 2:11 PM

I like this comment, not because it starts out by agreeing with me, but because of the specifics. It makes me sad, though, to contemplate the lost opportunities. Still hoping that--yes, we can--make it right.

November 28-Day 1 of U.S. Immigration

It's almost the end of the day. I've been out and about--to the post office, the store, Garapan, now Java Joe's.

Nothing seems any different.

The world did not end with the federalization of the CNMI's immigration. The world did not magically improve either.

We'll have to wait and see how things develop over the next few years. This will be a slow process.

Printer Ribbon

We can send Howard Willens to Washington, D.C. the minute we hear that the Court has dismissed the initial 2 counts of the case fighting federalization of our CNMI immigration.

But we are helpless to obtain printer ribbon to issue permits to the people here trying to renew their entry permits.

For about 2 weeks now, our office has been hearing how CNMI Immigration doesn't yet have the renewal permits ready because they're still waiting on printer ribbon. Yeah. Right.

Five More Years... and other news...and some thoughts.

1. Fitial is being re-elected Governor of the CNMI. He's ahead by 500+ votes, and it seems unlikely (although not impossible) that the absentee ballots will change the outcome of the run-off election.

My previous post on the elections included these:
2009-11-02 The candidates
2009-11-19 On the Spoils System


2. Fitial's lawsuit has been dismissed. It challenged the federalization of the CNMI's immigration, claiming the Consolidated Natural Resources Act violated the Covenant by infringing the CNMI's right of self-government.

Some of my previous posts on this subject, including analysis of the merits of the lawsuit, are here:
2008-12-17 A brief recap of the pending motions
2009-03-11 On the amicus brief


I want to say bad news (Fitial's re-election), good news (dismissal of the federalization lawsuit), but I am reminded of the Chinese story about tao.

What I see as good is that we had an election and we will have a Governor chosen by more than 50% of the people.

What I see as good is that we have a system of justice where anyone can make their claim and have a judge review it, based on written laws and principles.

Who knows? Perhaps it will take 5 more years of Benigno Fitial for us to learn a bit more about the spoils system and what its harms are.

We will have the same 5 years in transition to U.S. immigration. We'll see how it unfolds.

Umbrella Permits-WIP

There's been a lot of talk about umbrella permits, and lots of flak in the newspapers and on blogs. Opinions vary.

I want to weigh in on the subject. I want to be intelligent and perceptive about it. But it is impossible to do so because the legal basis for the "news" and the full terms of the Umbrella Permits are still a work-in-progress.

There is a CNMI "protocol" written by Howard Willens. I do not think this protocol has the force and effect of law; it is more like a guide or roadmap to help everyone understand how the CNMI administration is proceeding as to the transition to federal immigration.

The protocol, available at the CNMI Department of Labor's site does not mention the term "umbrella permit." Each of the immigration entry classifications is described, and a catch-all "other categories" classification is also included. None of these match up with the description of the "umbrella permit" as given so far verbally by Deanne Siemer.

And there is the whole question about Labor issuing permits that have any effect as entry permits.

I am studying it all. I am also awaiting the regs or whatever it is Attorney General Ed Buckingham is working on.

And I will have opinions, as well as analysis.

But I'm not going to give an opinion on the hot air that has been blowing all over Saipan. [EDIT: By this, I mostly mean Deanne and Maya's rah-rah talk. Wendy is just fanning it back as a means of getting some relief.) The hot air means nothing.

Let's wait for the fine print. Then we'll have something to talk about.

On CNMI Immigration and Federalization of It

Ken Phillips is blogging again at SOSaipan. Good thing. From him, we get this lovely observation:

"This whole transition to federal control has had a somewhat surreal quality, like a community theater production of Waiting for Godot under the palms."

And in today's Marianas Variety newspaper, we get Diego Benevente. His take is that 1) the federalization law will be beneficial "in the long run;" 2) but the time to prepare for it is too short.

Several thoughts come clashing into my head at once on reading this:
* we'll have had 1 and 1/2 years to prepare for it by 11/28/2009. If we can't do the job in that amount of time, more time won't help.
* when I say we, I mean we--both the CNMI and the U.S. The U.S. government is our government, just as the CNMI government is our government.
* The CNMI has done little to prepare for federalization of our immigration except complain and try to stop it.
* Diego Benevente and other CNMI politicians are in a position to criticize the U.S. government for not getting things done? The guys who took years to pass a budget? The guys who never corrected the CNMI's immigration issues in decades?

Diego Benevente complains about the uncertainty caused by the change to U.S. immigration. There is a simple solution to help address this concern. The CNMI Legislature can pass a law that grants the maximum status of two years to aliens who are here. This would protect our current labor force without violating the CNRA cap on new admissions; it would provide stabiilty and a means for planning for businesses and people; it would lessen anxiety.

It might even go a long way toward redressing some of the grievances our alien workers have against us.

Would the CNMI Legislature do something this simple? Something within their means? Or will they only be concerned about their image in the newspapers? Never mind the people who have lived here for many years and who may now be out of status due to circumstances. Never mind that we still have some control and the means to take precautions. Better to rant about the predictions of a coming storm than put up typhoon shutters and lay in stores of water and candles. Better to complain about the U.S. not doing what it needs to do; better to seek delay of what is "beneficial" to the CNMI!

Guam Hiring 20,000 Skilled Contract Workers???

According to the Inquirer Global Nation, Guam is finalizing plans to hire 20,000 contract workers from the Philippines to help with the military build-up there. But thanks to the internet where comments can often be shared quickly, there appears to also be reason for skepticism and concern.

Emmanuel GeslaniSep 10
Every time DOLE/POEA officials announce that Guam will need 20,000 workers their public statements just give illegal recruiters more credence as they go around the country enticing people to work in Guam. Roque should stop talking about Guam as this has been old news since two years ago and up to now POEA hasn't come up with a standard employment contract. What's this I hear that POEA will select only 10 agencies to handle Guam deployment? Shades of Taiwan and Korea again--"money changing hands" to be selected.

We've seen our share of recruitment scams here in the CNMI. We've heard stories about government officials getting kick-backs on hiring deals. We know the CNMI's economic road is littered with broken promises.

We hope Guam doesn't drink from the same dirty puddle.

And for those hoping to get hired, or hoping for anything--REMEMBER: IF IT SOUNDS TOO GOOD TO BE TRUE, IT PROBABLY IS.

Subcommittee Hearing-GAO testimony & video link

Interested in the testimony presented at the Subcommittee on Insular Affairs, Oceans and Wildlife--that's a subcommittee of the Committee on Natural Resources, House of Representatives? This is the hearing on the impact and progress of federalizing the CNMI's immigration pursuant to P.L. 110-229.

While we wait for Wendy to report at Unheard No More, here's something to read:
GAO testimony about its position: Coordinated Federal Decisions and Additional Data are Needed to Manage Potential Economic Impact of Applying U.S. Immigration Law.

The chart on the first page of the attachment to the testimony is a good graphic summary of P.L. 110-229.

You can also get the full sense of the flow of the hearing by this listing of witnesses: subcommittee panel listing and by watching a video of the hearing, also at this link.

Thanks to Dan MacMeekin.

Ironic?

Did any one else find this bit in yesterday's Saipan Tribune ironic?

The governor said the Subcommittee and the people of the Commonwealth are entitled to know exactly how much Fiscal Year 2009 funding has been spent to prepare for the implementation of federalization, how much more will be expended in the remaining months of FY 2009, and whether DHS is depending in part on funding being sought for FY 2010, “buried somewhere in the Department's request for $55.1 billion.”

Governor Fitial HAS been listening to Tina Sablan, after all! While he denies that the people of the CNMI have a right to know what our CNMI government is spending to fight federalization, he is insisting we have a right to know how much the US government is spending to implement it.

Hahaha!

I think we have a right to know about all of it--both the CNMI and US expenditures.

Judge Wiseman is moving cautiously, but he is moving the Open Government Act case toward final resolution.

No more delays!

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.

338. Federal Officials

I've met a lot of federal officials over the past two days.

Marine Monument


Some top officials from Fish & Wildlife are here about the Marine Monument--Barbara Maxfield, Barry Stieglitz, Donald Palawski; and also from NOAA--William Robinson. They are meeting with local government officials and conducting their first field review about the national marine monument, designated in January 2009 by then-President Bush.

They have the words of the proclamation and of the designation of DFW as lead agency, but apparently a lot of the groundwork, fieldwork, and framework from the process leading up to the designation has been lost by the change in Presidential administrations.

Here's what I understood would be two of the first agenda items for the Monument management:

1) fishing regulations, which are on the agenda for the next Wespac meeting scheduled for March 17-19, 23-25, 2009 in PagoPago, American Samoa; and

2) NEPA--environmental impact statements. There is a lot of groundwork that goes into one of these; and apparently DFW is looking to get started on the baseline fundamentals. (Lauri, Angelo--please correct me if I got this wrong...)

There is no fixed timeline, but some targeted dates:

4/11/2009--advisory council in place. This date is based on the proclamation language "within 3 months of the date of this proclamation." It is unlikely that this date will be met since the appointment is by the Secretaries of Commerce and Interior, and right now we don't yet have a Secretary of Commerce, although President Obama has nominated Gary Locke.

Governor Fitial's selections may not qualify, either, as the proclamation requires that the advisors be members of the local government.

8/2010--I think this was the target date for draft regulations, with the hope that they would be in place by 12/2010.

2011--Monument included in 2011 budget. It seems to be already too late to include the monument in the 2010 budget. It may be too late for the 2011 budget...

2013--full operation of Monument.



USCIS Application Support Center




Today marked the official opening of the US Citizenship and Immigration Service's Application Support Center in Saipan. This is part of the operation to federalize immigration here.

Present for the ceremony were Michael Aytes--Acting Deputy Director of USCIS, Carolyn Muzyka--Regional Director of the Western Region of USCIS, David Gulick--District Director headquartered in Honolulu, HI, and Walter Haith--Field Office Director from Guam. Other dignitaries came as well, including TSA official (Michael Connolly?), federal Court Judge Munson, DOI representative Jeff Schorr, and CNMI dignitaries including Governor Benigno Fitial, Mayor Juan B. Tudela, and Immigration Chief Mel Grey.

The ASC office is open and has the capacity to do "biometrics"--meaning fingerprinting, photographing, and getting electronic signatures. The staff gave a quick demonstration of how they do these. They have already been doing these things since 3/2/2009, but there is a small snafu for those applying for green cards. Right now USCIS still reads the various laws as requiring "admission upon inspection" and therefore says applicants must still travel to Guam. They are looking into the possibility of changing that, and will change it for sure on the start date of the federalization/transition.

There is some strong speculation that the start date will be delayed and that federalization will not start on June 1, 2009. It can be delayed as much as six months (to 12/1/2009), but could also be delayed for a shorter period of time.

The problem from the USCIS point-of-view seems to be that regulations are not in place, and the time for getting them in place is running out. USCIS does not want to start operation without regulations already in place. Given that regs usually need a 60 day comment period and then republication in adopted form, and we only have about 82 days from now before June 1, 2009, it seems like the time is too limited for a prompt start.

The USCIS officials present were an interesting mix of diplomat and bureaucrat. They got in their soundbites--about being a service provider, about wanting to do things right, about being available and open for comment and information, but they also didn't answer some direct questions, like whether there would be a delay in the start-up date. They expressly denied that there would be any amnesty by the agency, although they acknowledged that Congress could move in that direction.

They also have a policy man in the Saipan office--Fred Ongcapin--who is here to get a better grasp of some of the trickier issues and then go back to Washington and work on them.

All in all, the prospects from today's events seemed hopeful.

333. Umm--hypocrite? Federalization

Here's what the CNMI says in its latest filing in Governor Fitial's federalization lawsuit:

Finally, many of these lawfully admitted workers have resided in the CNMI fo ryears, and have U.S. citizen children or spouses entitled to stay in the CNMI. The CNMI has the right to protect the integrity of its social fabric and protect these individuals, who have committed no crimes, from removal as "illegal entrants."

And here's what he said when he opposed giving them permanent status through the federalization bill he now challenges:

In a significant departure from current immigration policy, H.R. 3079 declares which non-U.S. citizens will be given permanent legal status and permitted to stay in the CNMI or move to any part of the United States. H.R.3079 expressly grants a form of amnesty to nearly 8000 alien workers in the Commonwealth by granting them this nonimmigrant status, comparable to that enjoyed by Micronesians from the freely associated states. The bill's drafters chose to ignore that such an enhanced status was not permitted or contemplated when these workers elected voluntarily to come to the CNMI many years ago to enjoy the economic opportunities available in the CNMI.

The drafters of H.R. 3079 seemingly have no concern about the impact of this provision on the integrity and vitality of the indigenous Carolinian and Chamorro peoples in the Commonwealth. Permanent legal residence status permits such individuals to bring children and other relatives into the community where the status-holder elects to live. Consequently, the impact on the local CNMI community might be far greater than anticipated if most of these new permanent legal residents elected to stay in the Commonwealth and bring in children and other relatives not presently allowed to reside in the CNMI. However well-intentioned this proposal appeared to its drafters, its consequences already have seriously affected the quality of life in the CNMI. The proposal has generated unrealistic expectations among the guest worker population in the Commonwealth, stimulated boycotts of businesses because their owners have opposed this provision, and contributed to increased divisiveness between guest workers and the indigenous peoples of the Commonwealth. We recommend that the provision be eliminated from H.R.3079.

Originally, the CNMI was given control over immigration because it was thought that the CNMI would want to keep the number of alien workers lower than would be allowed by US immigration, as a means of protecting the small, indigenous populations' cultures and social fabric.

But the CNMI decided a better way was to bring in lots of foreign workers and just keep them powerless.

So, we want alien workers, but we don't want them to have rights to permanent residency, and we especially don't want them to have any political power. But trust the CNMI to be the one to protect them?

Exactly what kind of protection does the Governor have in mind?

Federalization lawsuit-1/12/2009

Both the Saipan Tribune and the Marianas Variety report today on the CNMI's responses to the US Defendants' filings in its lawsuit challenging federalization of immigration here.

Both articles parrot the content of the CNMI's response, and give no analysis of the situation. For that, you need to check out Wendy's Unheard No More blog reports here and here.

There are two motions pending: the CNMI's Motion for Preliminary Injunction and the US Defendants' Motion to Dismiss.

For me, there is no legal merit in the CNMI arguement that control of alien labor is a matter of "local self-government" under the Covenant. It's hard to imagine that anything could be less "local" than a foreign work force.

I also find no legal merit in the repeated blathering that the US is breaching its contract with the CNMI by extending immigration here in the way it does. The Covenant is so crystal clear that the US could extend its control of immigration here, and do so by US Congressional action in a way it deems appropriate, that it's inconceivable how any respectable person would argue that to do so violates the contract between the US and the CNMI.

I can only hope that the federal court decides to dismiss the action and the CNMI attorneys are slapped with sanctions for filing a legally frivolous lawsuit.

Let us get on with the real task at hand--drafting regulations that will improve the situation here.

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.

Federalization-Motions Pending

Governor Fitial's lawsuit challenging the U.S. law that federalizes CNMI's immigration faces a critical point on January 15, 2009 (U.S. time), when Judge Friedman hears two opposing motions.

Governor Fitial has filed a motion for a preliminary injunction. He hopes to get a ruling that, at least temporarily, stops application of the law to the CNMI.

The U.S. defendants have filed a motion to dismiss the case. They hope for a ruling that disposes of the case completely and thus clears the way for application of the law to proceed.


A Brief Recap:

In April 2008, the U.S. Congress passed S. 2739, which President Bush signed into law as P.L. 110-229 in May 2008. It extends U.S. immigration to the CNMI, beginning in June 2009. In September 2008, Governor Fitial filed a lawsuit in federal court in Washington, D.C. against US defendants (Homeland Security and Labor officials), challenging the law.

Fitial's challenge focuses on two essential claims: that the law allegedly violates the CNMI's right to self-government guaranteed by the Covenant; and that the law was unconstitutionally enacted without the CNMI's participation in the legislative process. Fitial claims that the law will wreak havoc on the CNMI economy, devastating it.


For more on the complaint and claims made, see my previous blog posts at:
Fitial vs. federalization: a neutral summary at Day In Court
Fitial vs. federalization: 1st installment at Saipanwriter
Fitial vs. federalization: 2nd installment at Saipanwriter.


Fitial's Motion:

For Fitial to succeed on the preliminary injunction motion, he has to meet the federal law standard:

To obtain a preliminary injunction, the plaintiffs must prove: (1) a likelihood of success on the merits; (2) irreparable harm; (3) that less harm will result to the defendant if the preliminary injunction issues than to the plaintiffs if the preliminary injunction does not issue; and (4) that the public interest, if any, weighs in favor of plaintiffs. See Pappan Enterprises, Inc. v. Hardees's Food Systems, Inc., 143 F.3d 800, 803 (3d Cir. 1998)).

Injunctive relief is considered an extraordinary measure and is not lightly granted. Fitial will need to make a strong showing in order to prevail.

He faces high hurdles on all prongs of the test.

1) likelihood of success on the merits: The chance for success on the merits is frought with difficulties.

On his claim for violation of the Covenant, Fitial faces the contradiction of the Covenant itselt. Fitial uses as the basis for his claim the Covenant's guarantee of a right to the CNMI's "self-government," but the Covenant also expressly permits the U.S. Congress to extend U.S. immigration to the CNMI. Clearly, the framers of the Covenant did not view federal immigration control as defeating local self-government.

On his claim for violation of the U.S. Constitution: The Covenant provides for participation in the U.S. political process through a Resident Representative and through 902 negotiations. It did not provide for direct participation in the Legislative process. The U.N. found that the Covenant was sufficient and that the CNMI, by ratifying it at a plebiscite by an overwhelming majority, effectively engaged in its self-determination. Although there is no doubt that participation in legislative processes is a fundamental aspect of democracy, Fitial will have to show that the U.S. Constitution requires participation to be through an elected Legislator and that the U.S. Constitution prohibits participation of the kind defined in the Covenant. In other words, Fitial will have to show that 200 years of U.S. territorial policy violates the U.S. Constitution.

2) irreparable harm: In order to get a preliminary injunction to stop application of P.L. 110-229, Fitial must show that he faces irreparable harm that would be caused by the law if he doesn't get the injunction. There is no clarity of harm to him. He asserts a right to claim harm to all of the CNMI because he is the Governor. He relies on speculative reports that discount their own reliabiity for predictive assessments. Much of the harm he is concerned about seems tied to other economic factors, as well.

3) balance of hardship tips in favor of movant: Fitial claims certain hardship and economic doom from application of the law, in particular difficulty in attracting foreign investment and a manpower shortage. On the other side of the balance, the law was designed to address other hardships, including labor abuses and the disincentive of local manpower. Delay in implementing the law adds to these hardships. The law also includes some measures to provide for a temporary continuation of the current use of alien labor and a gradual phasing out of reliance on it, cushioning some of the hardship Fitial complains of. Additionally, granting the preliminary injunction will add to the uncertainty here and would likely worsen the climate for foreign investment, not remedy it.

4) public interest: This is the most politically divisive issue because it requires an impartial assessment of the CNMI's policies. Many in the CNMI are sensitive to criticism and refuse to acknowledge any failure or responsibility on our part.

My view of the public interest: The CNMI has built its economy on foregin workers by keeping their wages low and their availability high. The CNMI has also denied foreign workers any entry into permanent status, keeping them in a permanent state of powerlessness. These CNMI policies have made for a private sector with low wages, few workers' rights, and poor working conditions. This third-world economy private sector has not attracted local workers, who prefer government jobs or opportunities in Guam, Hawaii and the mainland. While the CNMI has had some short-term economic benefit from its policies, it has done so at a high moral cost. It also ruined its international image, creating a vision of the CNMI as a place of sweatshops, sex trade, and human trafficking. Fitial argues that a return to this style of economy is in the public interest. I disagree.

I think it unlikely that Fitial will prevail on his motion for preliminary injunction. However, loss on the preliminary injunction would not necessarily be an end to the case.


The Federal Motion:

The U.S. Defendants seek to dismiss the case on four grounds: 1) jurisdiction: case or controversy. The injuries alleged are not concrete and particularized, but instead speculative and hypothetical; 2) jurisdiction: The case is not ripe for review; 3) jurisdiction: Fitial lacks standing; and 4) failure to state a claim: The law is expressly authorized by the Covenant.

1) Case or controversy--the CNMI's standing: In order to bring a case to court, a party must have suffered an "injury in fact." There must be a legally cognizable interest that is violated. And the violation of that interest must be the cause of the alleged injury.

The federal defendants complain that the CNMI's case is based on speculation, not fact; that the injury to the economy stems as much or more from other considerations like the CNMI's own bad policies and world economic forces and personal investor decisions than from the prospect of US immigration; that the CNMI has no legally cognizable interest in handling its own immigration; and that granting relief as requested in the complaint is no guarantee of a remedy for the injuries alleged.

This last point is especially clear when applied to the second cause of action in Fitial's lawsuit: The remedy of delaying application of P.L. 110-229 would have NO effect whatever on the claimed constitutional violation--the CNMI's lack of participation in the legislative process. In fact, P.L. 110-229 is the law that amplifies the CNMI's role by giving us a delegate to Congress.

It's also clear that the remedy sought will not address the declining economy that is due to the pull-out of the garment industry and the migration of local workers to the mainland.

2) Ripeness: This is a jurisprudence consideration that prevents courts from premature adjudication, from deciding abstract disagreements, or weighing in on differences on policy. The CNMI has the ability to work with the federal agencies to craft the regulations that implement the law, and thereby avoid some or all of the fears they express in the lawsuit. Where the injury alleged may never occur, the case is not deemed ripe for review.

3) Fitial's standing: This is different than the CNMI's standing addressed in #1 above. Fitial brings the action as governor. He claims no other basis than his concern as the chief executive of the CNMI. The federal defendants call this a "parens patriae" case, meaning the Governor is acting as a father-figure raising the concerns of his constituents. However, the federal defendants say that the U.S. government acts as the parens patriae on matters about the relationship of citizens to the federal government, and the state government does not have the right to do so.

Fitial must have a "procedural" interest in order to bring the action, a statutory or legal duty apart from his general role as Governor, that gives him a concrete and particularized injury in his own right. Fitial apparently has none, and in fact, as pointed out in our local newspapers by Representative Tina Sablan, the duty to represent the CNMI in legal matters rests with the Attorney General.

I suspect that the CNMI Acting AG will step in, and thereby address this procedural defect.

4) Failure to state a claim: This is perhaps the most basic aspect of the federal government's motion. The Covenant authorizes the U.S. Legislature to extend federal immigration to the CNMI. The U.S. Legislature has done so.

The federal defendants argue that the self-government protections of the Covenant relate to "institutional" guarantees, not substantive. That the protection is for us to elect our own local leaders and have our own local government free from federal intrusion, not to have control over certain spheres of influence. They cite a CNMI-9th Circuit case that expressly interpreted the Covenant in this manner.

The federal defendants also point out the obvious--that federal immigration laws are not labor laws. But even if they were, the Covenant permits application of federal labor laws, too.



If the federal Court grants the U.S. Defendants' motion to dismiss, the case will be over at the trial level. It is possible that Fitial would appeal, but it seems unlikely he would get the immediate relief he so desperately wants.



Conclusion:
My personal analysis leads me to think that the U.S. Defendants must prevail on both motions. However, it's never safe to predict a judge's conclusions. From a quick review of Judge Friedman's more prominent decisions, it appears that he is conscientious and dedicated to the law. We can only wait and see how he views these issues.

290. Sorting through the Legal-Speak

I read the article in today's Tribune where Greg Baka responds to Tina Sablan's Open Government Act request. I can't help but comment! I'm thinking out loud here, so please feel free to point out where I've gone astray.

Greg seems to give 2 basic reasons not to disclose how the CNMI government is funding the lawsuit against the US challenging federalization of our immigration. The Open Government Act doesn't apply because the information is "litigation related" and there are no other "non-litigation related documents."

The Open Government Act--OGA
The people of the CNMI did not yield their sovereignty to the Governor or government which serves them. The people, in delegating authority, did not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people must remain informed so that they may retain control over the government they've created.

We have an "open government act" which provides us access to information in our government. It is to be construed in favor of access; any and all exceptions are to be construed narrowly or strictly.

We have a right to know how the government spends our public funds. We have given the government a narrow exception that provides for non-disclosure of documents necessary to allow it to prosecute and defend legal cases. But this exception is subject to interpretation. Is it so broad that we have given up the right to know how public funds are spent in litigation? Or is it a narrower exception?

The litigation exception to the OGA
Greg seems to argue that the "litigation" exception for disclosure under the OGA is co-extensive with the attorney-client privilege.

The attorney-client privilege is a privilege between client and attorney and is invoked by the client. Attorneys, of course, must keep their client's confidences. So one question to begin with here is "who is the client?" The CNMI is the plaintiff--that means our government is the client. To me that means the people are all part of that client base. (Think government "of the people, by the people, for the people.") The OGA seems to recognize that the people, who hold sovereignty, must be kept in the loop of information.

EDIT: I've now learned that it is clear law that

the identity of a client, the fee agreement and payments of fees are NOT protected by the attorney client privilege or the work product doctrine.

There's a whole string of cases in the federal courts on the issue and all going in the same direction--not protected. In the 9th circuit, a case to look at is In re Michaelson, 511 F. 2d 882, 888 (9th Cir. 1975). So Greg gains nothing by arguing that attorney-client privilege protects this information. IT DOESN'T.

Even if the privilege generally did, however, protect such information, I don't think that there is necessarily a co-extensive protection from the OGA, which requires limited, strictly-construed protection to litigation-related matters in order to keep secrets from the public.

The federal courts rulings that fee arrangements are "peripheral" and not litigation-related, not work product, all seem to undermine Greg's supposed analysis. I wonder what he cites as authority for his position. (The newspapers don't say and don't carry his full letter.)

It seems reasonable to me that the people should be allowed in on the secret of who represents them and how that firm is being paid. An attorney would not be able to keep this information secret from his client. And the government shouldn't be allowed to keep this information secret from the people who are, ultimately, the client.

The protection of litigation materials from discovery by the adverse party should be narrowly construed to mean only those materials necessary in the prosecution or defense, the untimely disclosure of which could affect the outcome. The Marianas Variety article mentions a report Howard Willens gave in a cabinet meeting on the progress of the lawsuit; to me, this clearly falls within the exception. In contrast, though, the OGA requires that employment and salary matters are within the clear ambit of public information. I don't think you can cloak this information under the "litigation" label and then claim that it's protected from disclosure.

And in this particular instance, it doesn't seem as if we're talking about some great secret that, in the hands of the opposition, would give them an unfair advantage in the litigation. We're talking about public funds and how they're used. It isn't likely going to help the Federal Government in the lawsuit to know how much money we're spending on it--unless the Governor is illegally using federal dollars for the project (in which case, the Feds could find out anyway by an audit of their own). There's no suggestion that he is using federal funds, so why not disclose the truth?

And this is where I can't figure things out. Why doesn't our Governor want to tell us where the money is coming from? Has he started thinking that the public funds are his alone and that he's not constrained by the CNMI Constitution and his public duty? Has he no obligation to report to the people?

And that's a very scary thought. Tina Sablan is right to be using the OGA, whose very purpose is to keep the citizenry informed so we can make sure our government is operating the way we want it to.

If the money is coming from elsewhere, not public funds, then we, the people are possibly NOT the client. And the lawsuit should not be filed in the name of the CNMI. At the very least, we need to know about this, if this is happening. The professional rules of conduct prohibit an attorney from being directed or regulated in his/her professional judgment by anyone other than the client. If the law firm representing the CNMI is being paid by someone other than the CNMI, we need to know so we can make sure that someone else isn't the one directing the litigation.

No documents that aren't litigation-related?
Greg says there are no documents that aren't "litigation-related." That no re-programing of funds is involved. That the money is coming from the Governor's discretionary fund. That's what we want to know more about. How does the Governor have half-a-million dollars in discretionary funds? Why can't those funds be used for more pressing needs? That's why we need to be informed.

Greg has construed the "litigation-related" term so broadly that everything about the lawsuit is said to fall within its bounds. He also insists that it is perfectly normal to use outside counsel for CNMI-government lawsuits, despite the CNMI Constitution's clear prescriptive statement that all legal actions by the CNMI must be filed by the CNMI Office of Attorney General (OAG). This is in apparent answer to the underlying question, the reason we want the information-why are we spending money on an outside firm and why isn't the CNMI AG handling this case?

As to the use of "outside counsel," the OAG does work through all of its assistant AGs and the AG himself cannot personally review every piece of litigation before it is filed. That makes sense. But it doesn't necessarily follow that you can constitutionally delegate the responsibility of the AG to represent the CNMI outside of the AG office to private counsel, or to do so without a written delegation.

The reason the AG delegates within the office is because of the workload. I also see the necessity of being able to have different counsel when there are "conflicts of interest" but theoretically, if you (the AG's office) represent only one client-the CNMI government-then you shouldn't have any conflicts. (Conflicts arise when you represent more than one client.) That leaves "lack of specialized experience" or "resource constraints" as justifications for needing outside counsel. The latter-resource constraints-is a bogus suggestion. If you have hundred of thousands of dollars to hire private counsel, you are not constrained by limited resources.

So that leaves delegating to outside counsel because of lack of specialized experience. But the CNMI Constitution doesn't give a loophole to the requirement for the AG to represent the CNMI in all litigation for this reason. And the OAG could just as easily hire an attorney in-house who does have the experience. So again, none of these reasons for why the CNMI executive is saying they can hire private, outside counsel and NOT have the AG's Office sign on the complaint and do the work are persuasive or logical.

And saying that the Governor does not have to create documents to disclose is just ludicrous. There are documents: Do you really expect us to believe that you've hired a law firm and are paying thousands of dollars (hundreds of thousands of dollars) and have no written agreement? Of course there is a writing /contract. Even the model rules of professional conduct strongly urge attorneys to put their fee-agreements in writing. The issue is simply whether these documents are "litigation related" and exempt under the OPA or not.



The CNMI Government, including Governor Benigno R. Fitial, should not be allowed to hide information from the public, deciding what we need to know and what we don't, when it comes to where public money is coming from, how it's being spent, and how matters and actions being done in the public's name are being paid.

So all in all, I'm not impressed by Greg Baka's obfuscation with Legal Speak. Who is paying for this litigation and where are the funds coming from? If we're using public funds, we have a right to know. Tell us.


And Saipan Tribune--use a photo of Greg Baka-not Alan Barak!

271. Latest 9th Circuit Case

The latest 9th Circuit case, Chicanos Por La Causa, Inc. vs. Napolitano is very interesting in light of our CNMI Governor's lawsuit against the U.S.

In the CPLC case, the Arizona Legislature passed a licensing law that revokes licenses of businesses that hire illegal aliens. The law requires that Arizona employers verify employment on-line using the federal website system.

The 9th Circuit said that federal immigration law pre-empts state law as to sanctions for recruiting and hiring illegal aliens, pursuant to 8 U.S.C. sec. 1324a(h)(2), except that states retain rights over licensing and similar matters.

In this case, the 9th Circuit held that the state law that requires revoking the license of a business for employing illegal aliens is within the state's rights, and not pre-empted. It held that the state could require employers, for its state licensing, to use the federal employee-status verification system. It cautioned that its holding was limited to the facial challenge, and indicated that when the law is actually implemented, it could be subject to challenges as applied.

I find this interesting because one of the claims raised in the lawsuit by Governor Fitial is that P.L. 110-229 pre-empts our local "labor" laws. Federal immigration laws directly impose limits on recruitment and hiring of foreign workers. Clearly, under federal immigration law, federal immigration measures are permitted to pre-empt even states' laws (in some instances and to some degree), except for local concerns like business licensing.

The Fitial administration, in its complaint, likened States' rights under the U.S. Constitution (Articles 1 and 10) to our local self-government over internal affairs under the Covenant, but that doesn't seem to bolster the claim that application of federal immigration laws here violates those self-government rights.

This case is a 9th circuit decision; and the Administration's suit against federalization is filed in the Washington, D.C. district court, part of the 2nd Circuit, I think. So this case isn't binding precedent, but it's still informative of how the federal courts view the relationship of U.S. immigration law to state's rights and laws.

In my opinion, it doesn't seem to lend any support to the Fitial lawsuit challenging federalization of our immigration here.